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Presumptions in EU Competition Law: Blurring the Substantive-Procedural Dichotomy
Issue:
Volume 4, Issue 1, March 2021
Pages:
1-9
Received:
22 December 2020
Accepted:
5 January 2021
Published:
15 January 2021
Abstract: In EU competition law, presumptions are widely used for reasons of efficiency. However, the legal mechanism for the establishment and application of presumptions in the case law of the Court of Justice of the European Union may not always support efficiency. Instead, the fact that CJEU not only considers the systematic concept of presumptions per se, but also takes into account the full effect of EU law and any directly applicable general legal principles renders the establishment and the application of presumptions unpredictable and sometimes inconsistent. This phenomenon owes largely to the CJEU’s contextual approach in interpreting EU law and the fragmentary nature of this approach. To have a better understanding of this phenomenon, this article first explores the operation of presumptions in EU competition law; second, through concrete examples, it examines the Court’s approach to establishing and applying the presumptions; third, it identifies the potential impacts of the Court’s contextual approach on the enforcement of EU competition law. The article seeks to demonstrate that the Court’s interventions in presumption-related issues have blurred the boundary between substantive and procedural law, and thus risk narrowing the principle of national procedural autonomy. The Court’s approach also presents challenges for the current system of decentralised enforcement of EU competition law by national courts.
Abstract: In EU competition law, presumptions are widely used for reasons of efficiency. However, the legal mechanism for the establishment and application of presumptions in the case law of the Court of Justice of the European Union may not always support efficiency. Instead, the fact that CJEU not only considers the systematic concept of presumptions per s...
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Legal Monitoring in the Eurasian Economic Space
Issue:
Volume 4, Issue 1, March 2021
Pages:
10-22
Received:
28 December 2020
Accepted:
8 January 2021
Published:
28 January 2021
Abstract: Currently, legislation is rapidly developing in many countries of the world. The governing bodies of interstate integration associations, such as the EU or the Eurasian Economic Union, are no less intensive in their normative activities. The high intensity of these processes is due to the scale of the challenges and threats faced by states and interstate integration associations. Unfortunately, poor implementation of laws remains a weak point. To assess the effectiveness of laws, states and interstate integration associations are developing new legal techniques. Legal monitoring is a cutting-edge legal technique that allows assessment of regulatory effectiveness. It is an integrated structural and analytical mechanism for analyzing and assessing a regulatory act across all stages of development and adoption. The paper discusses the problems related to implementing legal monitoring in the Eurasian Economic Union (EEU), a body that encompasses Armenia, Belarus, Kazakhstan, Kyrgyzstan and Russia. The purposes of this paper are: (1) to study the theoretical, legal and organizational backgrounds of legal monitoring as a tool for improving legal effectiveness in the EEU and its member states at the supranational and national levels; and (2) the development of proposals for upgrading regulation of public relations emerging as a result of legal monitoring procedures carried out in the EEU. To fulfil these purposes, theoretical, methodological and legal frameworks of legal monitoring by governmental authorities in the EEU member states and by the Eurasian Economic Commission, the EEU’s permanent executive body, were studied. Special priority was accorded to the monitoring activities that the Commission carried out to identify the measures the EEU member states took to mitigate the effects of the coronavirus disease (COVID-19) outbreak. Another significant line of research was identifying and studying organizational models that frame the monitoring of law-making in the EEU. The analysis allowed the author to prepare proposals to improve the legal framework of legal monitoring by the EEU’s permanent executive bodies and the integrated legal monitoring system in the Eurasian economic space.
Abstract: Currently, legislation is rapidly developing in many countries of the world. The governing bodies of interstate integration associations, such as the EU or the Eurasian Economic Union, are no less intensive in their normative activities. The high intensity of these processes is due to the scale of the challenges and threats faced by states and inte...
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Favour and Power in the Acquaintance Society: Interpreting a Conflict in White Deer Plain
Issue:
Volume 4, Issue 1, March 2021
Pages:
23-27
Received:
28 December 2020
Accepted:
11 January 2021
Published:
28 January 2021
Abstract: The White Deer Plain constructs an ideal acquaintance society. The conflict over Widow Li’s 0.24 hectares of irrigated land between Bai Jiaxuan and Lu Zilin is a typical case in such society. Combining Chinese local historical facts with the text of White Deer Plain, the sociological method is used to analyze this dispute, and the following conclusions can be drawn: First, “Face”is still highly valued in rural China; Second, As the villagers are closely bonded in agricultural life, neither the participants nor the on-lookers want to destroy the harmonious relations; Third, When there is a dispute, villagers tend to mediate through a third party, because it relatively doesn’t destroy the existing harmonious relationship. The key to third party mediation is to find an authoritative mediator who is good at observing the thoughts of both parties in a dispute. In this novel, the conflict between Bai Jiaxuan and Lu Zilin is solved smoothly, because Mr. Zhu's prestige, as well as Mr. Zhu's personal letters meet the psychological demands of Bai Jiaxuan and Lu Zilin. After Bai Jiaxuan and Lu Zilin apologized to each other and agreed to waive the debt of Widow Li, peace returned to the Plain. But new interpersonal “debts” and “returns” with no fixed term emerge. The significance of this conclusion is that it can be used as a reference to solve the conflict in China's rural areas.
Abstract: The White Deer Plain constructs an ideal acquaintance society. The conflict over Widow Li’s 0.24 hectares of irrigated land between Bai Jiaxuan and Lu Zilin is a typical case in such society. Combining Chinese local historical facts with the text of White Deer Plain, the sociological method is used to analyze this dispute, and the following conclus...
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Narratives, Policies and Governance Influence Development of Sustainable Human-Nature Relationship Systems in Central but Subtle Ways
Issue:
Volume 4, Issue 1, March 2021
Pages:
28-38
Received:
14 January 2021
Accepted:
25 January 2021
Published:
30 January 2021
Abstract: As global attention increases to climate change, topics related to its causes, long-term effects, and associated issues grow in number and complexity. Once dominated by fossil fuels and alternatives to them, related discussions now include environmental justice and equity, cultural and environmental diversity, education, spiritual ecology, and complex systems to name a few. Rarely discussed is the critical, more basic, and less obvious role of Earth and culture’s co-evolution and the central part this plays in individual and collective human identity formation. The longitudinal study reported here revealed the importance of these foundational development processes and their consideration in efforts toward more just, resilient and sustainable futures. A globally familiar situation, the proposed construction of a hydropower plant in a largely untouched area of Iceland’s remote West Fjords, provided a material and internationally relevant focus for coordinated study of people and natural context and the meanings assigned in the course of their interaction. The findings strongly suggest that as we write laws, set policies, and create agreements at local, national and international levels, the processes of individual human development and earth-human co-evolution must receive focused consideration. Regulations and the types of relationships they support are important shapers of contexts that influence, in turn, personal, cultural and environmental directions and identities. Findings highlight also Homo sapiens’ role, intentional or not, in the evolution of the species as we know it. Implications of the research extend from schooling to governance, economic policy, and the writing, interpretation and enforcement of laws. All are influenced by the stories we tell and meanings associated with them. Without that understanding and what it reveals about human-nature relationships, changes required for more durable and inclusive futures will be limited. Using methods of participatory research and ethnography, this research investigated human-nature relationships, how they develop and are interrupted in context, and the associated implications for addressing many issues surrounding climate change and its mitigation.
Abstract: As global attention increases to climate change, topics related to its causes, long-term effects, and associated issues grow in number and complexity. Once dominated by fossil fuels and alternatives to them, related discussions now include environmental justice and equity, cultural and environmental diversity, education, spiritual ecology, and comp...
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The Legal Framework for Waste Management in Cameroon by International Environmental Law
Issue:
Volume 4, Issue 1, March 2021
Pages:
39-46
Received:
3 February 2021
Accepted:
18 February 2021
Published:
17 March 2021
Abstract: The rules of international law find their authority in the provisions of Article 38 (1°) of the Statutes of the International Court of Justice, in four sources, namely: treaties, international custom, general principles of law, and secondary sources (court decisions, tribunals and doctrine). However, beyond these sources of "hard law", which impose binding obligations, there are also "soft law" rules whose obligations are not binding. However, it should be noted that new customary rules appear quite quickly, as does the speed with which global environmental issues take hold of the political calendar, tending to highlight the evolution of legal norms and to relegate customary law to the background, after conventions or treaties. Although some fundamental principles, such as the equitable use of resources can be attributed to decisions based on customary law, treaties are undoubtedly the main basis used by the international community to regulate activities threatening the environment. In this perspective, the legal framework for waste management in Cameroon by international environmental law is palpable through the ratification of treaties, international agreements because Cameroon is a signatory of conventions, codes, protocols, and international agreements which reinforce the existing legal instruments at the national level and especially which lend credibility to the environmental protection policy in general, and the efficient and environmentally sound management of waste in particular, with international partners.
Abstract: The rules of international law find their authority in the provisions of Article 38 (1°) of the Statutes of the International Court of Justice, in four sources, namely: treaties, international custom, general principles of law, and secondary sources (court decisions, tribunals and doctrine). However, beyond these sources of "hard law", which impose...
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Research on the Scope of Deposit Number Limited Claim of Strain Patents and the Furnishing of Deposited Strain
Issue:
Volume 4, Issue 1, March 2021
Pages:
47-53
Received:
17 February 2021
Accepted:
3 March 2021
Published:
17 March 2021
Abstract: Because of the active research on microorganisms, there is a large number of deposit number limited claims of microorganism strain patents; at the same time, the total amount of deposited strains has increased continually. However, the scope of protection of these patents is unclear, and there are many restrictions on obtaining the deposited strains. This paper begins with a Chinese case involving strain patent infringement, discusses the scope of deposit number limited claim of the strain and suggests that this kind of claim can be interpreted as "a strain that has the same specific characteristics as the strain deposited in qualified depository institution" to retain flexibility in judgment. Specifically, the full genomic sequence should first be considered as the compared subject unless it is unavailable, and random mutations in the sequence can be assessed under the doctrine of equivalents. As for the propagation, multiplication, and gene recombination of patent strains, 98/44/EC has established rules for treating derivatives from biological materials, which are worth applying in this area. If deposit number limited claim of strain could get a broad scope of protection, the furnishing of the deposited strain should be more convenient, and strict restrictions on furnishing the strain should be relaxed.
Abstract: Because of the active research on microorganisms, there is a large number of deposit number limited claims of microorganism strain patents; at the same time, the total amount of deposited strains has increased continually. However, the scope of protection of these patents is unclear, and there are many restrictions on obtaining the deposited strain...
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An Empirical Analysis on the Identification of Deep Link Infringement: Take the Judgment Documents of the Chinese Courts in the Past Ten Years as Analysis Samples
Issue:
Volume 4, Issue 1, March 2021
Pages:
54-60
Received:
8 March 2021
Accepted:
18 March 2021
Published:
26 March 2021
Abstract: In the era of infringement 3.0, deep linking has become a typical behavior of network communication, and disputes frequently occur. However, since its inception, deep linking has always been in a gray area between legal and illegal, causing the court to find itself in a dilemma in determining the infringement of deep linking. Therefore Clarifying the related issues of deep link infringement determination should be the proper meaning of advancing copyright protection in China. Through the case analysis and empirical research on the judgment documents of Chinese courts in the past ten years, we can understand the basic situation of its legal regulations, including the geographical distribution, time distribution, and right object distribution of judgment documents. Then sort out that in judicial practice the identification standards for deep link infringements have not been unified, the space for indirect infringements is insufficient, complexity of consideration factors of trial results, and the evaluation of mixed technicality for difficult problems related to the evaluation of technology use behavior. Finally, it is suggested that “providing works” should be used as the identification standard, to clarify the legal rights basis of the works of the chained party, to improve the burden of proof by the parties to the deep link, and to improve the scientific system for identifying infringements of the deep link.
Abstract: In the era of infringement 3.0, deep linking has become a typical behavior of network communication, and disputes frequently occur. However, since its inception, deep linking has always been in a gray area between legal and illegal, causing the court to find itself in a dilemma in determining the infringement of deep linking. Therefore Clarifying t...
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