Beyond the Mission Civilisatrice: The Properties of a Normative Order within an Internationalized Territory

2006 ◽  
Vol 19 (2) ◽  
pp. 275-304 ◽  
Author(s):  
BERNHARD KNOLL
Keyword(s):  
Separation Of Powers ◽  
Institution Building ◽  
Legal Certainty ◽  
Civilizing Mission ◽  
Judicial Control ◽  
Liberal Internationalism ◽  
The Third ◽  
Complex Process ◽  
Legal Forms ◽  
Normative Order

Theorizing about the operation of law in an internationalized territory involves three discrete dimensions, according to which this article is structured. First, liberal legal forms are transmitted without being subject to mediation by a ‘sovereign’. The diffusion of imported norms represents the precise telos of a mission civilisatrice of a postcolonial institution-building mission. Such internationalization projects realize their liberalizing potential through a complex process where they provide legal continuity while importing legal forms that emphasize discontinuity and progress. In the second dimension, the article accounts for the asymmetric co-government setting exhibited in Kosovo in which law is both municipal and international. The syncretic nature of legal sources limits attempts to establish a ‘hierarchy’ of norms in an internationalized territory. Further, the promised advent of a liberal future is challenged by what this article identifies as the third characteristic of such a transitory legal order – the unaccountability of the international administering agent. These three properties of a normative order entail a paradox in which the aspirations of a fiduciary administration operating in the slipstream of liberal internationalism and its ‘civilizing mission’ are qualified by the absence of key criteria of a Rechtsstaat – the democratic creation of laws, the separation of powers, legal certainty, and the judicial control of normative acts.

scholarly journals The partial waiver of the rights and partial invalidation of rights to the invention

2021 ◽  
pp. 51-59
Author(s):  
Petro Borovyk
Keyword(s):  
Legal Protection ◽  
Third Parties ◽  
Legal Certainty ◽  
Utility Model ◽  
Patent Owner ◽  
The Third ◽  
Utility Models ◽  
The Law ◽  
State Registration ◽  
The Right

Borovyk P. The partial waiver of the rights and partial invalidation of rights to the invention. In view of changes in the Law of Ukraine «About protection of rights for inventions and utility models» introduced according to the Law No. 816-IX as of 21.07.2020, it is implied that a patent owner can waive rights provided by a state registration of an invention (utility model) fully or partially, and a court can render the rights for the invention (utility model) invalid fully or partially. The partial waiver of the rights or rendering the rights invalid causes a number of issues on a rather frequent basis, in particular, regarding a certain procedure of defining the entire scope of rights according to the patent and a portion of these rights. Since the scope of rights is defined by claims, the partial waiver of the rights or the partial rendering the rights invalid substantially represents a change of the scope of rights, which are defined by the claims as published. The patent may be granted for a group of inventions. In such case, the scope of rights shall be defined by the claims that comprise several independent claims. Here, the partial waiver of the rights for the invention may be carried out by waiving one or several independent claims at the discretion of the patent owner or by rendering one or several independent claims invalid by the court. Therewith, the scope of rights that is defined during conduction of an examination for another invention of the group of inventions, which are mentioned in a single protection document (patent), is not changed. The partial waiver or the partial rendering the rights for the invention invalid for the claims having one independent claim is a more problematic case. A key aspect of this problem is an influence of the proposed amendments of the claims onto the scope of rights for the invention and its correspondence with the requirements for granting a legal protection. More specifically, it is an establishment of a fact of reduction of the scope of rights when introducing the proposed amendments into the independent claim and examination of a new version of the independent claim for compliance with the requirements of patentability. An important aspect also lies in establishment of a balance of interests of the patent owner and third parties. The patent owner will receive a mechanism of implementation of the right for protection of allowable embodiments of the invention, while the third parties will receive a right for a legal certainty by means of an analysis of the scope of rights of the new version of the claims. The article discloses grounds for waiving the rights for the invention and the mechanism for implementation of the waiver under the legislation in force both for the case of the group of inventions and for the partial waiver or the partial rendering the rights for the invention invalid with the claims having one independent claim. Keywords: scope of rights, independent and dependent claims, amendment to claims, proceedings

Options for Applying Functional Overlapping Competing Jurisdictions (FOCJs) for Municipal Cooperation in Russia

2017 ◽  
pp. 73-107 ◽  
Author(s):  
Peter Friedrich ◽  
Mariia Chebotareva
Keyword(s):  
Public Service ◽  
Service Provision ◽  
Public Law ◽  
Public Enterprises ◽  
The Third ◽  
Political Environments ◽  
Public Service Provision ◽  
Service Activities ◽  
Private And Public ◽  
Legal Forms

Municipal cooperation is important for transformation countries, like Russia, which have to develop legal, institutional and political environments for public service activities. The authors recommend FOCJs as an instrument for coordinated municipal public service provision. To determine the suitability of FOCJs the analyst has to investigate the relation between FOCJ theory, their financing possibilities, the fiscal effects, and the legal forms in which FOCJs can operate in Russia. The authors define several forms of FOCJs and sort out appropriate public enterprises of private and public law for Russian FOCJ. To analyse the establishment, the operations, and the competition between FOCJs the authors present three types of models. One relates to the establishment of an FOCJ, the second concentrates on financing service activities, and the third model deals with competition among FOCJs and demonstrates the effects of different ways of finance. The article concludes with elaborating recommendations for financing FOCJ under conditions in Russia.

Facing the Three Ds

2021 ◽  
pp. 25-41
Author(s):  
Clara Rachel Eybalin Casseus
Keyword(s):  
Local Development ◽  
The Bahamas ◽  
Urban Dynamics ◽  
The Third ◽  
Complex Process ◽  
The Third World ◽  
The City ◽  
Environmental Landscape ◽  
Epistemic Perspective ◽  
Level Analysis

In this chapter, the author provides a unique set of insights concerning the policy of urban dynamics that is part of a complex process. The focus is on how disasters and development are understood and experienced through the lens of decolonial thinking based on a discussion of the displaced issue in a complex global socio-economic context of the city. Because the third world is associated with development needs to be reformulated in terms of dialogues from different enunciation loci, it becomes pertinent to consider the decolonial epistemic perspective in a space that constantly faces disasters that jeopardize its development in the framework of the effects on the environmental landscape and local development initiatives of Hurricane Dorian. Based on an informative discussion of an institutional level analysis, the author concludes with important insights about the case of Haitians in the Bahamas to demonstrate some interesting implications for (mis)management through NGOs.

Reaching the Internal Tension Model

2021 ◽  
pp. 42-58
Author(s):  
Margit Cohn
Keyword(s):  
Decision Maker ◽  
Constitutional Law ◽  
Separation Of Powers ◽  
Executive Branch ◽  
Normative Theory ◽  
The Political ◽  
Modes Of Operation ◽  
Political Sphere ◽  
The Third ◽  
Executive Action

This chapter provides the basis of the model advanced in the book. Based on the internal tension model, governing constitutionalism-at-large, the chapter submits that the executive is best viewed as straddling the line between subjection to law and dominance beyond law. This is no ‘paradox:’ embodying one of the tensions ingrained in constitutional law, the executive draws on an irresolvable tension between its role as executor of law, under the separation of powers ideal, and its function as manager, or dominant decision-maker in the political sphere, in which it acts above and beyond the law. Under the internal tension model, normative theory can be better expounded, and the extent of required constraints over excessive power can be better addressed. The chapter discusses, and rejects, three models of the executive branch, all of which are based on hierarchical and dichotomous thinking. The subservient executive model connotes full supremacy of the constitution and legislation over the executive; the imperial executive model draws on a vision of executive supremacy; and the third, bipolar model offers a vision of alternating modes of operation. All are set aside in favour of a model that recognizes the internal tension which underlies executive action.

Introduction

2021 ◽  
pp. 1-12
Author(s):  
Jeffrey S. Sutton
Keyword(s):  
Federal Government ◽  
Criminal Law ◽  
Separation Of Powers ◽  
Executive Branch ◽  
Vertical Separation ◽  
Race Discrimination ◽  
The Third ◽  
Legislative Branch ◽  
One Step ◽  
Over Time

This section introduces the topic by explaining the role that structure plays in protecting liberty and property rights. As illustrations, it explains how federalism offers a role for states and the national government to play in addressing pandemics, race discrimination, and criminal law. It explains how the states and federal government have adopted increasingly different forms of government over time. It then introduces the parts. Part I deals with the judicial branch. The second part of the book looks at current issues facing the executive branch in the state and federal systems. The third part of the book deals with the legislative branch. The fourth part of the book, all in Chapter 9, takes vertical separation of powers one step further: federalism within federalism. The fifth part of the book, all in Chapter 10, addresses the ultimate recourse of liberty: the freedom to change our fifty-one constitutions.

Introduction The Birth and Growth of Judicial Review: 1607–2020

2021 ◽  
pp. 1-14
Author(s):  
Steven Gow Calabresi
Keyword(s):  
Judicial Review ◽  
Separation Of Powers ◽  
Charismatic Leadership ◽  
The United States ◽  
Boundary Line ◽  
Constitutional Courts ◽  
Supreme Courts ◽  
Checks And Balances ◽  
The Third

This introductory chapter discusses how judicial review of the constitutionality of legislation has usually emerged historically for a combination of four reasons. First, judicial review of the constitutionality of legislation is a response to a nation’s need for an umpire to resolve federalism or separation of powers boundary line disputes. The second main cause of the origins and growth of judicial review of the constitutionality of legislation is what can be called the rights from wrongs hypothesis; judicial review very often emerges as a response to an abominable deprivation of human rights. The third major cause is the out-and-out borrowing of the institution of judicial review of the constitutionality of legislation from either the United States’ model; the German Civil Law model; and, most recently, from the Canadian Second Look judicial review constitutional model. The fourth major cause is the existence of a system of checks and balances, which gives Supreme Courts and Constitutional Courts political space to grow in. Revolutionary charismatic constitutionalism can also lead to the growth of judicial review as Professor Bruce Ackerman has explained in an important new book, REVOLUTIONARY CONSTITUTIONS: CHARISMATIC LEADERSHIP AND THE RULE OF LAW (2019).

Power, Social Conflict, Institutional Formation, and Credible Commitment

2020 ◽  
pp. 134-168
Author(s):  
William D. Ferguson
Keyword(s):  
Political Institutions ◽  
Social Conflict ◽  
Conflict Theory ◽  
Institution Building ◽  
Political Activities ◽  
Institutional Formation ◽  
The Third ◽  
Functional Development ◽  
Institutional Construction ◽  
Future Gain

This chapter develops a social conflict theory of institutions. The third hypothesis posits that unequal distributions of power shape the creation, evolution, and demise of economic and political institutions. A background discussion defines power—a slightly slippery concept—and addresses key sources and manifestations of power. Unequal distributions of power then generate a series of CAPs associated with asymmetric influence on institutional construction and evolution. A flowchart model illustrates. To complicate matters, the fourth hypothesis posits that powerful parties cannot, left to themselves, credibly promise to refrain from using their power for their own future gain—often at the expense of others. Specifically, without institutional and motivational constraint, powerful parties may seize the gains from others’ investments in potentially fruitful economic and political activities. Functional development thus requires resolving multiple, largely second-order, CAPs related to credibly restraining powerful actors—when such actors, simultaneously, exert disproportionate influence over institution building.

Article 76 of the LOSC on the Definition of the Continental Shelf: Questions concerning its Interpretation from a Legal Perspective

2006 ◽  
Vol 21 (3) ◽  
pp. 269-285 ◽  
Author(s):  
Alex Oude Elferink
Keyword(s):  
United Nations ◽  
Continental Shelf ◽  
Law Of The Sea ◽  
The Third ◽  
Complex Process ◽  
Legal Perspective ◽  
National Jurisdiction ◽  
United Nations Convention ◽  
The Law ◽  
Definition Of

AbstractThe establishment of the outer limits of the continental shelf beyond 200 nautical miles under Article 76 of the United Nations Convention on the Law of the Sea (LOSC) is a complex process, which requires a coastal state to dedicate significant resources. To understand the reasons for the inclusion of this complex provision in the LOSC, this article first looks at the origins of Article 76. Subsequently, a number of provisions of Article 76 are considered to illustrate the questions which exist in connection with its application and interpretation. It is concluded that Article 76 fulfills the mandate that had been given to the Third United Nations Conference on the Law of the Sea in respect of the definition of the limits of national jurisdiction, notwithstanding the complexity of the issue and the interests involved. Before the Third Conference started there was no certainty about the extent of the continental shelf. Article 76 provides a procedure to arrive at precisely defined outer limits. Once Article 76 will have been implemented by all the present states parties to the Convention, most of the outer limits of the continental shelf vis-à-vis the Area will be defined in precise terms.

scholarly journals Privatising public prisons: Penality, law and practice

2016 ◽  
Vol 50 (4) ◽  
pp. 473-492 ◽  
Author(s):  
Alison Liebling ◽  
Amy Ludlow
Keyword(s):  
Quality Of Life ◽  
Public Sector ◽  
Private Prisons ◽  
The Third ◽  
Complex Process ◽  
The Uk ◽  
Private Management ◽  
First Time ◽  
Work And Life

In October 2011, HM Prison Birmingham was transferred from public to private management, under G4S. This was the first time that an existing operational public prison was privatised in the UK. The move marked the third and most far reaching phase of prison privatisation policy, and was intended both to increase quality of life for prisoners, from a low baseline, and to reduce costs. Prior to 2011, private prisons had all been new-builds. Private contractors had thus far avoided the additional challenges of inheriting a pre-existing workforce and operating in old, often unsuitable, buildings. This article reports on a longitudinal evaluation of the complex process of the transition, and some outcomes for both staff and prisoners. As an experiment in the reorganisation of work and life in a ‘traditional’ public sector prison, the exercise was unprecedented, and has set the agenda for future transformations. The example illustrates the intense, distinctive and rapidly changing nature of penality as it makes itself felt in the lived prison experience, and raises important questions about the changing use of State power.

FRENCH EMPIRE ELITES AND THE POLITICS OF ECONOMIC OBLIGATION IN THE INTERWAR YEARS

2009 ◽  
Vol 52 (4) ◽  
pp. 989-1016 ◽  
Author(s):  
MARTIN THOMAS
Keyword(s):  
The State ◽  
Development Plan ◽  
Popular Front ◽  
Political Elites ◽  
Civilizing Mission ◽  
French Empire ◽  
The Third ◽  
Colonial Policy ◽  
Policy Debates ◽  
Cultural Terms

ABSTRACTThis article considers the changing ways in which French political elites understood imperial obligation in the interwar years. It suggests that the economics of imperial rule and disputes over what could and should be done to develop colonial economies provide the key to understanding both the failure of interwar colonial reforms and the irreversible decline in France's grip over its colonies. In making this case, the article investigates four related colonial policy debates, all variously linked to changing conceptualizations of economic obligation among France's law-makers. The first concerns Albert Sarraut's 1921 empire development plan. The second reviews discussions over the respective obligations of the state and private financiers in regenerating colonial economies during the depression years of the early 1930s. The third debate reassesses policymakers' disputes over colonial industrialization. Finally, the article revisits the apparent failure of the investigative studies of economic and labour reforms conceived by the left-leaning Popular Front in 1936–8. The point is to highlight the extent to which senior political figures clashed over concepts of ‘colonial obligation’ viewed less in the cultural terms of ‘civilizing mission’ than in the material sense of economic outlay.

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