The Rights of the Accused under the Rome Statute and the US Bill of Rights: Has 20 Years of ICC Jurisprudence Brought Those Together?

The alleged lower standard of the rights of the accused under the Rome Statute compared to those guaranteed by the US Constitution was one of the most important areas of criticism of the Rome Statute by American scholars. This criticism was made in the early 2000s and was based on the text of the Rome Statute alone, before any ICC jurisprudence existed. This article draws on the 20 years of operation of the ICC to ascertain whether the judicial interpretation and application of the procedural rights of the defendant, guaranteed under the Rome Statute, have made them more compatible with their counterparts under the US Constitution. The premise of this article is that the 20 years of interpretation and application of those rights may have strengthened them to the point where the gap between the procedural guarantees under the Rome Statute and the US Constitution has become negligible. This, in turn, would make the early criticism of the ICC system obsolete, at least insofar as the legal argument is concerned. Accordingly, this paper examines existing jurisprudence of the ICC in the areas of prosecutorial disclosure obligations, admission of evidence and the examination of witnesses. This is for several reasons: firstly, the selected three rights were among those criticised by American scholars in the early 2000s as falling short of what was required under the US Constitution; secondly, unlike some other criticised rights, which reflect the ICC’s institutional design and, therefore, are unlikely to change in scope, the selected three are relatively vaguely phrased, thus making it possible to transform their meaning through judicial interpretation; thirdly, the selected rights have been sufficiently elaborated on by the ICC through case law so as to carry a meaning exceeding what the Rome Statute alone provides. The findings of the study indicate that inasmuch as the ICC’s jurisprudence has moved some aspects of the three areas under examination towards their counterparts under the US Constitution, the procedural rights of the defendant before American courts generally remain more robust.

The Disclosure Regimen of the Federal Securities Laws

This chapter focuses on the disclosure framework of the federal securities laws. It explores the benefits as well as drawbacks of the current regimen and recommends measures that should be implemented to enhance its efficacy. Subjects addressed in this chapter include the focus of the securities laws on adequate disclosure rather than substantive fairness, the concept of materiality, the mandatory disclosure framework, the integrated disclosure system, the SEC’s dismantling of the mandatory disclosure framework in certain contexts, and the disclosure obligations placed upon publicly-held companies by the national securities exchanges. Upon analysis, significant gaps and drawbacks exist in this framework that should be remedied. The chapter thereupon proffers adaptable solutions that should meaningfully improve the disclosure regimen. Implementing these measures, including the requirement that companies (absent a meritorious business justification) promptly and adequately disclose all material information to the securities markets and investors, should enhance both market efficiency and investor protection.

8. The Decision to Prosecute and the Prosecution’s Duties of Disclosure of Evidence

This chapter first explains the role of the Crown Prosecution Service (CPS) and the factors that are taken into account when deciding to charge a suspect or to divert him from prosecution. It then examines the important obligations which are placed upon the CPS both at common law and under statute to serve pre-trial disclosure of evidence upon the defendant and their importance to the right to a fair trial. Defence disclosure obligations are also considered.

15. Disclosure obligations of companies and company accounts

This chapter considers the information about companies that is publicly available, paying particular attention to the rules with which the company must comply in relation to its accounts. It also provides some guidance on how to interpret the published accounts of a company.

Can continuous disclosure defaults be attributed to Big 4 versus Non-Big 4 auditor differences?

The numerous scandals attributed to lack of independence on the part of Big 4 auditors have reignited one of the most controversial issues in the accounting profession: Do Big 4 auditors provide higher audit quality? The objective of this paper is to examine whether the auditor’s reputation affects non-compliance with disclosure obligations and the type and number of defaults detected by the Ontario Securities Commission. Using an Internet-based list published by the Ontario Securities Commission in February 2020, I develop a sample of 286 firms consisting of 143 issuers in default and their 143 matching firms. Results show that the presence of a Big 4 is associated negatively with the various default types and the number of defaults. One implication of these findings is that hiring a reputable auditor may prevent firms and shareholders from being on the “shame list.”

The culture of non-disclosure and miscarriages of justice

This article considers key non-disclosure cases in the United Kingdom and Australia and the potential for prosecution disclosure failings to lead to miscarriages of justice. The authors discuss disclosure obligations in the context of the police–prosecution relationship and aspects of police culture that may facilitate practices of non-disclosure. They note that cultures of non-disclosure can place unfair practical burdens on the defence to ensure that disclosure duties are met by the prosecution. The authors call for cultural reforms prioritising disclosure as justice rather than process.

Das nemo-tenetur-Prinzip bei außerstrafrechtlicher Pflichterfüllung

Outside of criminal proceedings, there are various duties of disclosure that challenge the principle of nemo tenetur se ipsum accusare, which states that no person may be compelled to incriminate themselves. The question arises as to whether or not a legal subject can refuse such disclosure obligations outside of criminal proceedings invoking the nemo tenetur principle, or how such a (sometimes self-convicting) performance of duty affects criminal proceedings. The author attempts to provide the lawmaker with a systematic concept for answering this question in consideration of the historical, ethical and legal foundation of nemo tenetur, as well as an interpretation of the pertinent jurisdiction.

The Impact of Sustainable Finance on Insurers’ Activity

The article contains an analysis of the impact of the sustainable finance provisions either currently being developed at the European level or already partially implemented on the activities of insurance companies. These regulations will affect insurers’ activity as they play an important role in adapting the EU economy to climate change, above all, acting as long-term investors and risk managers, but also through appropriate management of the provided insurance cover. At this stage, the system seems to be quite complicated. The adopted sustainable finance regulations impose a number of obligations on insurance undertakings, particularly those offering insurance investment products, e.g. additional disclosure obligations, either general or addressed to individual clients. Moreover, insurance companies will have to comply with the restrictions on their investment policy. Besides, it should be emphasised that the adopted solutions do not fully consider the specific nature of insurance activity or individual character of national EU economies. As a consequence, the introduction of the sustainable finance regulation will certainly pose a significant challenge for insurance companies operating in Poland.