Laws

Renewed attention to equity in higher education is welcome because true equity helps us to reason together well. When administered correctly, the jurisprudence of equity models civil discourse and, therefore, can teach us how to carry out civic engagement reasonably. Equitable interpretation of the law teaches us how to understand each other charitably. And equity’s deference to law teaches us how to reason well together about our practical problems. Law is the practical reasoning that we do together. Equity serves the ends of justice by serving law, rather than undermining it. These functions of equity in adjudication point toward a model of equity in practical reasoning and civic discourse more broadly. Research method: jurisprudence. Full article

The present study aims at providing an overview of the international, European, and national legal frameworks relating to the obligation of intermediaries of financial transactions to report to tax authorities, and the professional secrecy which applies to their professions, as well as the conflict between the two. The authors address these topics from theoretical and jurisprudential perspectives, both at national and European levels, using doctrinaire, documentary, and comparative approaches. The analyses pointed out that the focus is placed on lawyer–intermediaries’ activities and liabilities when their activity is covered by confidentiality and legal privilege. Specific attention was revealed to be necessary when the conditions under which an exemption from the reporting obligation applies, and the particularities of the effects of the regulation in these scenarios. The topic of observing the legal framework and solving the possible conflicts generated by the divergent regulation of the law enforced has been the subject matter of recent European case laws that impact all the legal systems of the European Union’s member states, which has necessitated an examination of the hierarchy of law systems within the European Union member states and to emphasize the practical jurisprudential effects. Full article

In 2022, the European Commission introduced, for the first time in its history, a windfall profit tax to be applied on “excessive” profits realized by qualified businesses operating in the “Oil and Gas” sector. Immediately after its implementation, questions arose as to its sustainability and its consistency with constitutional principles of the different member states regulating the domestic power to tax. To assess the consistency with the aforesaid rules, the article samples two countries, inside and outside the EU (Italy and Australia, respectively), and the historical precedents of the matter. Italy has been chosen due to the particularly stringent set of principles regulating the power of the legislature to tax, and Australia has been chosen because of the long-standing experience with superprofit taxes. In most of the scenarios analyzed, one common feature emerged: the complexity in defining the “Extra” nature of the profits and, consequently, the uncertainties in the calculation of the taxable base. In the case of Italy, for instance, the legislator had to intervene in several different moments to fine-tune the taxable base and restore certainty to the tax system. As a conclusion, while the taxation of extra profits should not per se be disregarded, its implementation demands a more robust and precise legal framework together with the understanding that the introduction of such a levy would be a one-way journey for the tax systems: windfall profits taxes would be here to stay. Full article

As the green bond market expands, an increasing number of Green Bond External Reviewers (hereafter ‘GBER’ or ‘GBERs’) have gained momentum among investors and financial regulators. A GBER enhances the credibility of green bonds and prevents greenwashing risk in the green bond market by reducing the information asymmetry between issuers and investors. China is the second largest issuer of green bonds in the world. The current Chinese GBER legal framework is insufficient to ensure green bond market sustainability. Our purpose in this paper is to analyze the inadequacies of the Chinese GBER regulatory framework and to provide suggestions for overcoming the potential challenges within it. A textual analysis of primary legal sources and secondary academic sources serves as the main research methodology in this study. This paper provides an in-depth analysis of China’s GBER regulatory framework and addresses its shortcomings and weaknesses. Furthermore, given the evolving stage of the Chinese green bond market, this paper analyzes potential challenges for GBERs and proposes some suggestions to ensure high-quality reviews by GBERs. Full article

The planning and application of public policies in the panorama of the right to adequate food stands out for the development of the food supply of the Brazilian population. However, it is questionable whether these public policies have been effective in contributing to adequate nutrition. The aim of this article is to study the effectiveness of public food security policies in Brazil between 2012 and 2022. Also, urban agriculture is analyzed as an alternative food policy that can be carried out by the population, and contributes to the use of urban space. To understand the country’s food security situation and the effectiveness of public policies in avoiding a scenario of hunger and insecurity, the hypothetical-deductive method and the technique of bibliographical and documentary research are used, together with the theoretical framework in the theory of the cycle of public policies. It is concluded that the public policies developed were gradually weakened, and that between 2019 and 2022, the Brazilian government took measures discouraging the implementation of food policies. Brazil, with disjointed policies, facing the pandemic and an economic crisis, is in a situation of food insecurity and has portions of the population in a situation of hunger. Full article

On 27 March 2023, Aiden Hale broke into the Covenant School, a private Christian academy in Nashville, TN, and killed three students and three staff members. Hale, a former student at the school, was transgender. Although assigned female at birth, Hale identified as male, asked to be called by a male name, and used he/him pronouns. In the aftermath of the shooting, a newfound wave of anti-trans rhetoric soared, once again putting members of the transgender community in harm’s way. In this article, we review the details of the Covenant School shooting and consider them in the context of the anti-trans movement in the United States, a movement that has escalated as transgender people have become more visible and more vocal in society. We then present findings from an extensive content analysis of newspaper coverage in the two weeks following the shooting (27 March–10 April). In so doing, we add to the literature on K-12 school shootings and gender studies, specifically stigma towards the transgender community. Full article

While the colonial and apartheid regimes utilised draconian, arbitrary, segregated, discriminatory, and exclusive anti-black social-socioeconomic policies and laws to deny the majority of black South Africans access to and participation in various economic activities, post 1994 democratic South Africa has strategically introduced progressive policies and laws to ensure that black South Africans play active productive roles in socio-economic activities in all sectors. While this is commendable, various corporations and businesses owned by white companies are supposed to ensure that black people become part and parcel of the businesses, and companies are being denied active participation, using fronting purposefully to circumvent the requirements of the anti-fronting laws. Against this backdrop, this paper seeks to analyse the post-apartheid anti-fronting interventions that foster the mainstreaming of black South Africans into the corporate sector. The paper uses a literature review methodology to find and analyse primary and secondary sources of data relating to equality, BEE, and fronting. This paper presents the historical exclusion of blacks through the instrumentality of colonial and apartheid apparatuses and laws brutally utilised to exclude blacks from economic activities. Post 1994 democratic transformative interventions—laws—have been enacted to redress the segregated and exclusive laws; however, fronting activities and practices continue to undermine and circumvent successful implementation. This said, the post 1994 government continues to tackle impunity through the exploration of civil and criminal responsibilities and accountability of perpetrators and use the rule of law-judicial means to hold perpetrators accountable. This paper found that fronting is a persisting issue in South Africa despite anti-fronting legislative measures developed over the past years when the B-BBEE Act was amended. This paper advises more on pro-active anti-fronting measures to pro-actively foster the mainstreaming of black South Africans into the corporate sector. Full article

To fight corruption, money laundering, and organized crime, a proposed APUNCAC Beneficial Owner Rule would require financial service personnel to obtain and submit certification by the true beneficial owner when covered funds are transacted in amounts exceeding USD 3000. The strategy would trap front men into false statements, create a transaction-level record of assertions by front men that can be tested by a prosecutor, eliminate loopholes that allow criminals to escape prosecution in offshore havens, not require proof of a predicate crime or the illicit nature of funds, trigger a chain of witness cooperation, fight organized crime using a domino strategy, and be accomplished via a relatively simple change in domestic laws. Analysis suggests (1) the required technology exists; (2) transaction friction would be minimal; and (3) that the implementation of the Rule is feasible and practical, both operationally and from a legal standpoint, suggesting that the proposed Rule offers a promising strategy to fight organized crime. Full article

The ILA Study Group began its work by identifying guiding principles that should frame and inform state practices with respect to children in migration. These principles included, but were not limited to, non-discrimination; the best interests of the child; the right to life, survival, and development; the right of the child to express their views on all matters affecting them; and the right to an effective remedy. The Study Group identified some of the most common rights violations for children in migration such as arbitrary age assessment practices; inadequate and age-inappropriate reception policies and facilities; and immigration detention of children and other coercive practices. The Study Group undertook a multidisciplinary approach by summarizing the research documenting the harmful effects of these practices on child health and well-being. It surveyed (1) treaties and international instruments that might recognize a right or remedy for children on the move; (2) regional and international fora where the claims of children could be heard; and (3) the growing body of regional and international jurisprudence upholding the rights of children in migration. Finally, it identified gaps in the international and regional frameworks and formulated recommendations as to how to ensure children in migration are able to enforce their rights and access justice. Full article

In this paper, we seek to define the Portuguese Electronic Jurisdictional Administrative Procedure and characterize the scope and success of its implementation in terms of access to justice and court efficiency. It encompasses different perspectives on the judicial system and the electronic administrative procedure, reflecting the diversity of its authors, and combines a theoretical approach and discussion with statistics produced with official judicial data. Therefore, it introduces the issue and its background and discusses the models and principles of electronic judicial procedure and its representation in the Portuguese judicial procedure and law. It also presents the Portuguese exceptional and temporary regime for conducting judicial hearings in the context of the COVID-19 pandemic, discussing its merits and presenting the corresponding judicial statistics. The paper concludes that the advent of electronic judicial procedure, driven by technological advancements and aiming to achieve procedural effectiveness and efficiency, represents a paradigm shift and a change in the nature of the legal process, i.e., an ontological transformation in the theory of the process that requires a robust conceptual framework, to ensure consistent interpretation and application of procedural law and to guarantee respect for equality and legal certainty. Full article

Considered as being the main component element of the advisory procedure, an endorsement is an opinion that an administrative body requests from certain authorities and administrative structures, according to the subject matter of the regulation, to adopt/issue an administrative deed. In this article, using logical interpretation as well as comparative analysis, we set out to highlight the significance of endorsements in Romania, outline their legal nature, and establish the relationships between the types of endorsements, so that the conclusions may represent a starting point for a future theory of this type of documents. We considered the French specialty literature to give a comparative law note to our approach. At the same time, we considered certain types of endorsements in some European states, based on the analysis of a Codex regarding a series of Constitutions of some European states in order to emphasize the importance they give to these endorsements. We gave an overview of the theory of endorsements through the lens of the existing legislation over time in Romania or rather, its lack thereof. In our study, we also referred to the draft ReNEUAL Code of Administrative Procedure of the European Union, which aims at “transposing the European values into the regulation of administrative procedure related to the non-legislative implementation of European Union law and policy”. We set out on this analysis, considering the lack of legal regulation of endorsements, their legal nature, and their effects, with reference not only to doctrine but also to some cases that we considered for analysis from court practice. In the framework of the new effort to develop the Code (still in the draft form) in Romania, it seems that endorsements will receive their well-deserved place, distinct from simple administrative operations. Our main approach concerns Romanian legislation, doctrine, and jurisprudence, but it also includes a brief analysis of the jurisdiction of the Court of the European Union, with reference to the endorsements issued at the level of the institutions of the European Union. As a general conclusion, we believe that endorsements should be separately regulated, by clearly distinguishing between administrative documents and administrative operations, in the future Code of Administrative Procedure. Full article

The new ECtHR decision in the case of Z. v. Croatia suggests that the rule of parental responsibility acquired ex lege is not always easy to implement in child abduction cases. The case primarily raised the question of determining whether the removal or retention of the child is wrongful in situations when the unmarried left-behind father does not have the ex lege right to parental responsibility under the law of the country of habitual residence, but he has acquired it under the law of the country in which he and the child had their previous habitual residence. In addition, the case of Z. v. Croatia raises the issue of renvoi, the habitual residence of children whose lifestyle involves frequent moving with their parents, as well as the issue of the need for thorough justification of the court decision. The identified difficulties showed the need to clearly elaborate and determine the interrelationship between Article 3 of the Child Abduction Convention and Article 16(3) of the Child Protection Convention, as well as the necessity to evaluate domestic legislative solutions and the practice of the national authorities that have led to the determination of violation in the present case. Full article

Nigeria is one of the top countries of China’s outward foreign direct investments in energy and power projects to meet the needs of China’s fast-growing energy-intensive industries. Following several risks faced by investors to invest in countries with high levels of regulatory, judicial and political uncertainties that appeared in most African states, including Nigeria, contracting parties often take steps to advance and enhance their investment relations and investment climate through an agreement or bilateral investment treaties. This paper examines the China–Nigeria Bilateral Investment Treaty (BIT) and the investment arbitration framework in place in the energy sector. It includes a general analysis on China–African BITs and features common difficulties and possible ways of addressing them. It analyzes the adequacy or otherwise of these frameworks and the various protections afforded to the contracting parties or the host state and the investors. It contends that the current China–Nigeria BIT is lacking essential environmental and social aspects, including sustainable development, corporate social responsibility, transparency and respect for the human rights of host communities, for the promotion of better China–Nigeria investment relations. Notwithstanding the fact that there has not been any known energy dispute in China–Nigeria-related projects, this paper calls for the need for an effective and efficient dispute resolution mechanism to address future disputes between the parties, in order to promote a favorable investment climate for Chinese (and international) investors willing to invest in Nigeria. It advocates that the China–Nigeria BIT should be unambiguous and well drafted to cover issues that could best address investment disputes in the energy sector. Full article

In American schools, conversations about violence prioritize direct violence, while indirect violence is virtually ignored. This current emphasis overlooks the structural violence deeply embedded in America’s social, political, and economic institutions, which were intentionally designed to exclude, and position some groups to experience disproportionate levels of poverty, exploitation, and persecution. To understand the mechanisms of structural violence, the concepts of structural violence and total institutions, the tenets of Disability Critical Race Theory can be used as an analytical lens. This retrospective comparative case study does so by exploring similarities in the lived experiences of Black, Emotionally Disturbed males across metropolitan special education, juvenile justice, and medical systems. The findings demonstrate a “convergence of violence” in America’s juvenile justice, medical, and special education systems, collectively pushing K–12-aged participants into carceral sites, denying them voice and choice, and providing them with performative healthcare. Our study recommends that institutions designed to serve K–12-aged learners use cross-sector collaborations to meet holistic learner needs and mitigate pressures to engage in direct violence. Specifically, we offer the Whole School, Whole Community, Whole Child model as a national approach to increase access to healthcare providers, social services, and mental health services, as well as engaging community stakeholders critical to understanding the cultural context of learners’ lived experiences. Full article

The need to protect victims of domestic violence is becoming increasingly more important in many States. The 1980 Hague Convention on international child abduction, which in principle requires the child’s return and apparently leaves little scope for protecting the child’s mother, is at times perceived as being at odds with this need. The 2022 US Supreme Court’s judgment in Golan v Saada is set to become a leading case with regard to abductions occurring against the backdrop of domestic violence. Although the USSC, out of necessity, considers the issue from the viewpoint of the US legal system, the impact of the decision will be felt well beyond the country’s borders. This paper will start by analysing the legal arguments developed by the USSC in finding that ameliorative measures are not required by the 1980 Hague Convention, but lie at the discretion of the courts, as well as the general principles laid down by the USSC to guide the exercise of that judicial discretion. Furthermore, the rationale for—discretionary, but still relevant—protective measures will be measured against the Brussels II-ter EU Regulation, which has established a different legal framework for EU Member States. In contrast to the position under pure Hague cases, the EU Regulation now clearly calls on the courts of the State of refuge to guarantee the child’s physical and psychological safety by directly adopting provisional measures, which will apply to the child upon return to the State of habitual residence and which are recognizable and directly enforceable in that Member State. It will be argued in this paper that ameliorative/protective measures offer a means for filling a gap that is increasingly being felt within public opinion, but that could undermine the efficacy of the 1980 Hague Convention. The best way of ensuring that domestic violence cases are not neglected, while at the same time remaining within the confines of the 1980 Hague Convention, would be to adopt expeditious, substantively well-defined, and effective protective measures. Full article

When a mother commits an international child abduction, even if she is fleeing domestic violence perpetrated by the left-behind father, she is bound to face complicated return proceedings under the 1980 Hague Child Abduction Convention. Such mothers are particularly vulnerable; apart from the costly, cross-border proceedings they face, if the court issues a return order, they risk returning to the abusive setting they fled from. This article explores avenues for safeguarding the protection of abducting mothers in return proceedings. The authors provide a range of potential avenues for improving the standing of the abducting mother fleeing domestic violence, including judicial and legislative interventions. The article delves deeper by considering the interplay between international child abduction law and international refugee law in cases involving domestic violence allegations. Particular emphasis is given to Article 20 and the growing instances of mothers defending return orders on asylum grounds pursuant to Article 20 and the flowing human rights implications. The authors point out a niche area for further research: the interplay between domestic violence and asylum claims. Full article

Recently, there has been a greater focus on promoting amicable solutions in cross-border family disputes. Alternative dispute resolution methods such as mediation and conciliation have been used in Brazil to avoid lengthy legal proceedings and to resolve cases where concerns about the child’s situation after their return arise. Parties involved in child abduction disputes can feel motivated to reach an agreement when they can decide on child support, custody, and visitation rights before the child’s return. However, enforcing these agreements can be challenging. This article examines Brazil’s experience with international legal cooperation requests under the Convention of 1980 on the Civil Aspects of International Child Abduction (Child Abduction Convention), where the parties faced these issues whilst trying to resolve their conflicts under one or more of the Hague Conventions. The article uses a pragmatic and empirical approach to address difficulties in recognising and enforcing agreements and available alternatives. It concludes with a suggestion for more cooperation between central authorities and with the idea that although adhering to the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children could improve the scenario in Brazil, a new international instrument would significantly enhance the resolution of cross-border disputes, especially for non-European states. Full article

The paper addresses the interplay between the 1980 Child Abduction Convention and the Regulation (EU) 2019/1111, briefly presenting the main novelties contained in Chapter III of the Regulation devoted to international child abduction, and then focusing on the provisions concerning the peculiar regime of recognition and enforcement of decisions on this subject matter. Final considerations are drawn with a view to determining whether the Regulation is able to streamline the most critical issues arising from the practical application of the predecessor Regulation (EC) No 2201/2003 and, more broadly, to cope with evolving and challenging cases of child abduction. Full article