Accepted Researches Abstracts
Prof. Yousry Mohammed Al-Assar
Professor of Public Law at Kuwait International Law School
Abstract:
Since the second half of the twentieth century, the world has witnessed an increasing growth in the principles of international law and its impact on national laws. As well as the Universal Declaration of Human Rights of the United Nations General Assembly in 1948 and the international conventions on the protection of human rights, and the most important of which are the International Covenant on Civil and Political Rights, the International Covenant on Economic and Social Rights, the Convention on the Elimination of All Forms of Racial Discrimination, the convention of all forms of discrimination against women, the Convention on the Rights of the Child , and others.
At the regional level, agreements and instruments have been signed to protect human rights in countries that have ratified these conventions and charters , such as the European Convention on Human Rights and the European Charter on Human Rights. The Arab States have also ratified the Arab Charter on Human Rights, and African countries have ratified the African Charter on Human Rights.
International conventions occupy a higher degree of national law in most European countries, but equal to the laws in accordance with the Constitution in both Kuwait and Egypt.
The constitutions issued after the Universal Declaration of Human Rights were influenced by the principles enshrined in this Declaration, such as the 1962 Kuwaiti Constitution. The new Arab constitutions referred to this declaration in its preamble and referred to international conventions on human rights, such as the Moroccan Constitution of 2011 , The current Egyptian constitution issued in 2014, and Tunisia’s current constitution issued in 2014.
The judiciary in the countries of the European Union, whether constitutional or ordinary, plays a very important role in ensuring the effective protection of public rights and freedoms. This protection is based on the principles of European law, Which the constitutions provide for their supremacy over national laws ,Indeed, the Swiss Federal Court raised the value of the principles of the European Convention on Human Rights to the same degree as the Swiss Constitution.
The constitutional court in Kuwait and Egypt refers to the principles of international law as general principles that the legislator must abide by and not to violate in the laws that he issues, in addition to relying on the provisions of the Constitution. The aim is to emphasize the importance of human rights and the universal human character of these rights.
Keywords:
Constitutional jurisdiction, judicial control over the constitutionality of laws, human rights conventions, principles of international law, the relationship between international treaties and national laws.
Prof. Dr. Gérard GRELLET
Professor Emeritus
Université Paris I Panthéon – Sorbonne
Abstract:
The modern food system is increasingly governed by international law . On a national level recent law development aimed at regulating food safety , marketing , transparency and health has been progressively added. On an academic level international food law has emerged as a field of study in itself.
On a national level recent law development has aimed at regulating food safety , marketing and transparency , while health has been progressively added
This contribution will examine the protection of the food consumer in the EEC context, particularly the harmonisation of international law and European regulatory regimes.
The Treaty of Rome ( 1958) made no explicit mention of consumer protection but that goal has been subsequently developed piece-meal over sixty years in the form of « Directives » and amendments . It is now an important facet of EEC « acquis communautaires. »
European food law has several aspects . Initially it concentrated on the free movement of food between the member countries , the « mutual recognition » principle ensuring that a food marketable in a member country should be marketable in all the other member states. But , subsequently, more and more emphasis has been made on transparency , food labelling and public health in the wake of food security scandals « mad cow disease », Belgian dioxin chickens). Today Europe is a highly regulated market , which requires food manufacturers and distributors to acquaint themselves with the European legislation before placing their products on the European market.
This paper will examine the possible divergences between these new developments and international law , divergences illustrated by important WTO cases against Europe over cattle growth promoting hormones , GMO, or chlorinated poultry. It will be argued that these divergences come from a minimum science-based food law ( i.e. a scientific assessment of risk undertaken by independent experts based on the best available science at the time’ preferred by US and Canadian law makers and the European approach which is also science-based but which is also focused on health and environmental issues such as food waste. These divergences have been at the core of the trade negotiations over a Transatlantic Trade and Investment Partnership ( TTIP) on such topics as the
Mandatory labelling of food containing genetically modified ingredients or the use of growth hormones.
Our proposed contribution will therefore examine the barriers to trade resulting from the inconsistencies between the EEC regulation and the food laws of the GATT regime. More generally our contribution will address the most significant links between EEC public health , the modernization of agriculture and environmental conservation in an international context.
Prof. Catherine MacKenzie
Abstract:
This paper explores the guarantee of international peace and security provided by the United Nations and analyses the role of the Security Council in the resolution of international disputes. This is particularly relevant to Kuwait as in 2018, Kuwait became chair of the Security Council and so exercised a pivotal role in the drafting of Security Council resolutions. This paper argues that notwithstanding the use of force by some nations, international law has a critical role to play in the resolution of international disputes and that the Security Council is well served by its rotating system of leadership.
International law developed from the 17th century onwards as a system of ordering international relations, and articulating the rights and claims of states, without supra-national institutions of any kind. The Treaty of Westphalia envisaged a system of collective security for resolving disputes but it did not involve any new institutions and was never operative (see Treaty of Münster, 24 October 1648, Arts 123-124, 319 CTS 1, 354). The ultimate way in which international disputes were settled, if diplomacy failed, was by war, which Grotius compared to a lawsuit. In the 19th century an informal “Concert of Europe” operated in which the major powers exercised strong influence over major disputes, but again this was never embodied in any institutional form.
The development of public international arbitration in the modern period is usually said to date from the Jay Treaty of 1794: see A Stuyt, A Survey of International Arbitrations 1794-1989 (1990). In fact arbitration of “inter-communal” disputes was common in ancient Greece and there are modern examples before 1794. But considerable impetus was given to the idea of inter-state arbitration as a result of the Alabama Arbitration (Great Britain v USA) (1872) Moore, 1 Int Arb 495. The first standing arbitral body was the Permanent Court of Arbitration (1900), established as a result of the First Hague Peace Conference in 1899. The spectacular failure of the Concert of Europe to prevent the Great War led to the establishment of the first general political international organisation seeking to resolve international disputes and to keep the peace, the League of Nations (1919-1946), and the first standing international court, the Permanent Court of International Justice (1922-1946). After World War II the United Nations replaced the League of Nations in the former role, the International Court of Justice replaced the PCIJ in the latter. The period since 1945 has seen a proliferation of dispute settlement procedures and mechanisms. Some of these have not been used at all (e.g. OSCE) or only to a limited extent (e.g. ITLOS). Others have been or are being heavily used: e.g. the European human rights mechanisms, the WTO DSB, the Optional Protocol procedure under the ICCPR; the Inter-American human rights system; more recently ICSID arbitration, NAFTA arbitration. Note that most of these (with the exception of the WTO) are “mixed” procedures of one kind or another.
More recent developments have allowed individuals to be incorporated into international dispute settlement in cases where they are directly concerned or affected, at least to some degree. Briefly, they include:
- in the field of commercial disputes, allowing individuals access to mixed arbitration (Iran-US Claims Tribunal, ICSID), or extending international systems of recognition of enforcement of private arbitration to mixed cases (e.g. under the 1958 New York Convention);
- in the field of human rights, progressively allowing individuals standing to challenge state action, including action of their state of nationality;
- alternatives to diplomatic protection which do not involve judicial remedies (national claims commissions; UN Compensation Commission).
Despite these developments, it remains a question whether private individuals litigating at the international level do so as equals defending their own rights or as delegates of their States of nationality. There has been a gradual recognition that individual states may have a form of “public interest” standing in relation to certain fundamental obligations, though the modalities and extent of any such standing are still poorly articulated. This paper seeks to contribute to international law on guarantees by articulating the UN’s guarantees of international peace and security in the light of the unique current position of the GCC states.
Prof. Mohamed Camel Charfeddine
Abstract:
The research proceeds from the observation that the protection of private life is being consolidated and confirmation in international instruments, constitutions and internal laws, at the same time, it is facing a variety of new challenges posed by social changes and technological and scientific developments. Article 24 of the new Tunisian Constitution states: “The State shall protect private life, the inviolability of the home and the confidentiality of correspondence, communications and personal data.” The 1959 Constitution was not explicit in ensuring the protection of private life. The new Constitution also provides for “freedom of opinion, thought, expression, media and publication” (Chapter 31) and the Constitution has numerous references to ensure the inviolability and dignity of the individual.
The protection of private life is one of the well-established guarantees in the Arab-Islamic civilization, which is linked to the noble value of protecting the dignity of the individual from every violation in order to prioritize human dignity. The explicit constitutional adoption of this guarantee in the international instruments and in the Constitution has not prevented exacerbating the aspects of undermining it, due to scientific and cognitive developments in general.
This study will focus on two aspects of this contemporary challenge: the first relates to the right to identity and what it may sometimes lead to of prejudice to the private life of individuals. Every human being has the right to know his or her true identity, which is an important part of his personality. The scientific development now allows, thanks to genetic analysis, breaking the silence and revealing the biological identity of the individual. Therefore is it possible to address this right to identity by adhering to the right to physical inviolability for the individual required to undergo genetic analysis when refusing to do so? The problem is not resolved clearly in the laws, which is the question of “preference” between basic rights, the right to identity faces, in this form, the right to maintain physical inviolability. It is a typical problem that is repeated in other areas and stands out through competing fundamental rights. Going into this first question raises a fundamental question: What is the criterion of “preference” between these two rights related to private life? Research on the subject also highlights that “competition” between fundamental rights is an implicit hypothesis. The subject raises a more general question relating to the nature, legality and limitations of fundamental rights related to the protection of private life.
The second topic is related to ensuring the protection of the personal data of the individual, which is a guarantee that risks the exercise of the right to information, freedom of expression and the need to organize society. This also competes with different basic rights. How can the constitutional judiciary as well as the judicial judiciary decide the issue and on what basis? Are the guarantees surrounding the constitutional right to protect personal data sufficient to immunize these data in all its aspects (image protection – protection of health data – protection of beliefs – protection of identity – protection of fingerprints…). The development of the capabilities of States and some individuals to control and store personal data, on the one hand, and the continuous pursuit of information and dissemination, raises a debate about the nature of the mechanisms required for their protection and the need to develop and support them. From a theoretical point of view, it is difficult to ensure the effectiveness of the basic constitutional right in the face of diverse contemporary challenges.
Key words:
Right to protecting private life, traditional guarantees, crowding out between the right to protecting private life and freedom of publication and expression, Preference criteria, Developing traditional guarantees.
Dr. Judith Spiegel
kilaw
Media freedom is closely linked to the right of information. This idea: media do not have the right to publish just for the sake of publishing, but for the sake of keeping people informed about the workings of their governments, parliaments, law enforcement, judiciary etc. To be able to report as truthfully as possible, and not to be accused of ‘fake news’ or ‘spreading rumours’, the media needs access to information. For the people, this is equally important. They have, after all, put their interests – and their money – in the hands of state-institutions, and have the right to know how well these interests are taken care of.Furthermore, the level of a nation’s (lack of) transparency is thought to be linked to its level of corruption.[1]
Therefore, many human rights instruments and national constitutions protect both freedoms, often mentioning them in the same provision. Art. 32 of the Arab Charter on Human Rights for example, guarantees “the right to information and to freedom of opinion and expression, as well as the right to seek, receive and impart information and ideas through any medium, regardless of geographical boundaries.”[2] There is an abundance of legal writing about media freedom – and freedom of speech in general – and its limitations. Much less attention is given to its counterpart: the right to know. This paper therefore focuses on the latter.
It will deal with the question how the right to information is dealt with in practice. How can members of parliament know what the government is doing? How can the media know what the members of the parliament are doing? How can people know how – for example – sovereign wealth funds invest their money? It will also deal with the question whether the right to information is unlimited and if not, what its limits are.Finally, it will address the private sector: is it beyond reach or does it have to comply with certain transparency-laws or regulations as well?
Many states have implemented some type of legislation to safeguard the right to information. Some of these laws will be studied in depth, including their limitations (e.g. based on laws regarding data protection) and their potential for abuse. To that end, the ‘Wet OpenbaarheidBestuur’ (Government Information Public Access Act) of the Netherlands[3] will be used as an example, as will be the Indian Right to Information Act[4] and finally, it will be studied if and if so, how the‘right to know’ is protected in Kuwait.
[1] One of the criteria used by Transparency International, which publishes the annual Transparency Index – also know as corruption-index, is how states guarantee access to information.
[2] Art. 32 par. 1 Arab Charter on Human Rights, as revised in 2004.
[3] The choice for the Netherlands is justified by it being the country of origin of the author and having a civil law system similar to that of Kuwait.
[4] The choice for India is based on the fact that it is the biggest democracy in the world.
Prof. Georges Saad
Abstract:
This research deals with the issue of discretionary power of the Kuwaiti Administrative Court, based on a bold decision issued by the Fifth Administrative Department on 11-12-2017, in an appeal filed against the Minister of Justice and the Undersecretary of the Ministry of Justice number: 546/1017 Administrative / 5.
The researcher supported his analysis with ideas of comparative law, especially French law and jurisprudence. He also tried to show that the Kuwaiti judge was bold in taking this decision. The judge is a person who is under pressure like everybody else, and definitely needs support in the face of administrative and political authority that do not always support the independence of the judiciary.
This research showed that the Kuwaiti judge actually did well when he revoked the decision of the administration to allocate 40% to the personal interview when selecting candidates for the position of a junior and legal researcher, because this behavior is likely to indicate favoritism and injustice to qualified candidates.
This research expanded on topics related to this subject, and sometimes somewhat distant such as the comparison with French decisions and the presentation of the discretionary power in England and the discussion of some decisions of the constitutional courts.
What the research presents is a comment on a Kuwaiti administrative decision, but on the basis of theoretical and practical consideration of the issue of discretion, or, if we may say, an analysis of discretion through an administrative decision. The research does not provide a commentary in the limited sense, but rather a discussion of a judicial decision, which is a fundamental issue, that raises the question of how to address the arbitrariness of the administrative (and political) authority through the judge’s work and his continuous efforts to strengthen his position.
This paper presents a proposal: in this decision, the Kuwaiti Administrative Judge introduced a new concept: Along with the well-known six-party: the control of substantive facts, legal facts, manifest error of assessment, the control of adjustment, the censorship of deviations of power and the control of proportionality, the Kuwaiti judge presented a seventh control allowing for the annulment of any administrative decision, which the researcher proposes to be called “Maximum Censorship.” This control is characterized by allowing the judge in exceptional cases to override the rules of jurisprudence in force (the six-party) and invalidate the administrative decision without disclosing the basis of any of these rules.
Dr. Yehia Mohamed Morsi Al – Nemer
Assistant Professor of Public Law
Kuwait International Law School
Abstract:
The purpose of this research is to study the modern judicial applications of the “Control of a Manifest Error of Assessment” in the control of the constitutionality of laws in the Supreme Court, the French Constitutional Council, and the constitutional judiciary in Egypt and Kuwait. The study identified the importance of monitoring this defect in the control of the constitutionality of the laws because it protects rights and freedoms and prevents the legislator from abusing his right to legislate. The defect of the manifest error in assessment is one of the defects of unconstitutionality, which differs from other defects, such as legislative deviation based on purpose, while the manifest error in assessment is attributed to the legislator’s assessment control over the legislative solution adopted in the law in question.
This study is an attempt to shed light on the constitutional problems raised by such control, and to outline the stages of the constitutional judiciary in the United States, France, Egypt and Kuwait regarding this control, in addition to discussing the recent judicial applications of such control on the promotion of the right to equality before the law, the development in the judiciary in this regard in the United States and France, and the extent to which these trends can be adopted in both the constitutional judiciary in Egypt and Kuwait, as well as to determine the controls and restrictions that the constitutional judge commits to when adopting these trends.
The study also highlighted the importance of controlling the manifest error in assessment regarding the requirement of legal legislation rationality, stating the historical origin of that requirement in the United States and how the Supreme Court expanded its use as a powerful weapon for further protection of rights and freedoms, stating the Constitutional Council’s position regarding the control of legislation rationality through controlling the manifest error in assessment, as well as discussing the applicability of those trends and their controls in both Egypt and Kuwait.
The importance of the study is that it deals with one of the important issues related to the constitutional judiciary and its role in the protection of rights and freedoms through the mechanism of the manifest error in the assessment and the position of the constitutional judiciary in the United States, France, Egypt and Kuwait to the use of this mechanism, as well as the controls of the constitutional judge when exercising this control, in order not to deprive the legislator from his public authority in regards to this assessment.
Dr. Ahmed Sayed Ahmed Mahmoud
Associate Professor / Civil Procedures
Faculty of Law – Qatar University
Abstract:
The judicial declaration of pleadings, as the most important litigation procedure before the courts, which fulfills the requirements of the right of defense and the principle of confrontation between adversaries and the right of the adversary to learn about proceedings, has become a fertile ground for the adversaries’ attempts to slow down litigation proceedings. Therefore, legislative, judicial and jurisprudential efforts are intensified to combat the phenomenon of slow litigation in this important procedure.
In view of the rapid developments in the world of information technology and the digital revolution, which have led to the rapid introduction of electronic means in various aspects of social, cultural, economic, commercial and other life aspects, it is necessary to dedicate these developments to achieve “litigation logistics”, which is access to justice in the least time, effort and cost possible, towards the use of modern electronic means of judicial declaration through the Internet.
The developments in the use of e-mail did not stop at the judicial declaration. As a result of the latest technology on the Internet, social media such as Facebook and Twitter have made a huge leap in communication through the Internet, where people spend most of their time on a daily basis, and to which they pay a great deal of attention. This has led to approving social media in the judicial declaration by the recent jurisprudence in many countries due to its advantages compared to other means of declaration.
This paper seeks to examine the legislative basis of the judicial declaration through social media in comparative laws, including Arab laws, especially those that adopt declaration by e-mail or other similar means of modern technology. This is in addition to searching for the legal basis in the trends of the comparative judiciary. The study also examines the extent to which social media are considered as basic, alternative or precautionary means of judicial declaration. The study also examines the strengths, opportunities, weaknesses or legal technical challenges in the use of social media, as compared to others, in regards to judicial declaration.
Abdulkarim Alotaibi
Abstract:
The current legal framework in the Kingdom of Saudi Arabia compels both court decisions and arbitration awards seeking enforcement in the kingdom to go through specialised enforcement courts and to be subject to the Enforcement Law of 2013. This law is the first unified enforcement regulation in the kingdom’s legislative history and it reflects a real attempt to modernise the kingdom’s legal framework. Before the introduction of the 2013 enforcement regulation, the enforcements of foreign decisions and awards were subject to unnecessary complications that made the kingdom’s legal system relatively unattractive to international commerce. However, the kingdom’s authorities realised this deficiency in their enforcement procedures and as a result the Enforcement Law of 2013 was issued. This regulation was followed by the issuance of a number of other regulations in different areas of law that aim to codify the Saudi legal system by creating a set of written rules that are easily accessible by both local and foreign concerned parties. Such attempts to codify the kingdom’s legal system have helped to bring its legal framework into linewith developed world practices, increasing its attractiveness and reliability in the eye of foreign commerce. This is particularly important as the kingdom has suffered from a long-standing history of dissatisfying foreign commerce, especially when it comes to the enforcement of foreign awards and decisions. In light of this modernising vision, the kingdom has further attempted to develop its enforcement procedures by issuing a second Implementation Act for the 2013 enforcement regulation. This act was issued in November 2017 and it introduced nine new provisions that attempt to clarify some of ambiguities embodied in the 2013 enforcement regulation. This paper aims to engage in a critical analysis of the second Implementation Act by comparing it with the previous one and discussing the main amendments introduced by the latter act.
Prof. Zainab Awadallah
Abstract:
In the 1960s, consumerism became prominent in the United States, after its industrialisation, market economies flourished. The consumer movement was a response in Europe, and in Canada, to what was perceived as overwhelming market forces to the detriment of the consumer.
The United Nations Guidelines for Consumer Protection (UNGCP) are “a valuable set of principles for setting out the main characteristics of effective consumer protection legislation, enforcement institutions and redress systems and for assisting interested Member States in formulating and enforcing domestic and regional laws, rules and regulations that are suitable to their own economic and social and environmental circumstances, as well as promoting international enforcement cooperation among Member States and encouraging the sharing of experiences in consumer protection.”
They were first adopted by the General Assembly in resolution 39/248 of 16 April 1985, later expanded by th Economic and Social Council (ECOSOC) in resolution E/1999/INF/2/Add.2 of 26 July 1999, and recently revised by the General Assembly in resolution 70/186 of 22 December 2015.
In regulatory jurisdictions that provide for this (a list including most or all developed countries, also the Arab countries, with free market economies) consumer protection is a group of laws and organizations designed to ensure the rights of consumers, as well as fair trade, competition, and accurate information in the marketplace. Consumer protection is linked to the idea of consumer rights, and to the formation of consumer organizations, which help consumers make better choices in the marketplace and get help with consumer complaints.
Consumer protection concerns the efforts of governments, not-for-profit organizations and activists to protect consumer rights, by taking into account consumers’ needs and interests. The scope of consumer protection covers measures against predatory pricing abusive business practices, unfair business practices, fraud and misrepresentation. Apart from legislation, self-regulation, including codes of conduct, also guarantees consumer protection.
A consumer is defined as someone who acquires goods or services for direct use or ownership rather than for resale or use in production and manufacturing use or ownership rather than for resale or use in production and manufacturing. Consumer interests can also be protected by promoting competition in the markets which directly and indirectly serve consumers, consistent with economic efficiency, but this topic is treated in competition law. Consumer protection can also be asserted via non-government organizations and individuals as consumer.
What is the need and importance of Consumer Protection?
Importance of consumer protection does not isolate the business. Financial institutions and banks provide finance to business. Government provides support and incentives. Employees contribute their time, skill and labour. Consumers are ready to pay for value. The businessmen can get the best support of all these parties only when it stops exploiting its customers.
To conclude, the importance of Consumer Protection is to safeguard consumers from any kind of exploitation from business organizations and ensuring the position of ‘King of Market’ to consumer.
Dr. Bilail Aql Alsendeed
Assistant professor-Kuwait International Law School
Abstract:
The Law of Encouraging Direct Investment in the State of Kuwait No. (116) of 2013, which annulled law No. (8) in 2001 regarding the regulation of direct investment of foreign capital in the State of Kuwait and replaced it in the application, is represented as a qualitative shift in provisions governing direct investment. The practical applications of its provisions in the few years after its promulgation imposed itself through a marked increase in foreign investment flows, both quantitatively and qualitatively.
This research aims at clarifying the most prominent updated provisions contained in the provisions of the law referred to through an analytical review and comparison (the first section), and thus shed light on the main results achieved by its applications and the most important challenges facing foreign investment flows in Kuwait, and the impact of its failure or continued success (the second section).
In order to expand the focus on the proposed changes and positive aspects, the research on new law innovations (the first requirement) included more attention to the legal forms that may be taken by the investment entities authorized by the Direct Investment Promotion Authority and the mechanisms associated with its licensing (the second requirement) and the guarantees and benefits that the investor can be benefited from to stimulate the localization of its value-added investment (the third requirement).
In order to pay more attention to the accomplished achievements and the challenges affecting Law No. (116) for the year 2013, the research reviewed the achievements of the Investment Promotion Authority in implementing the results in terms of the remarkable increase in the volume of investment in quantity and quality (the first requirement), in addition to raising the level of the state of Kuwait in regards to Ease of Doing Business Index issued by the World Bank Group (the second requirement), not to mention the smooth path it has followed for the processing of some complicated issues, especially with regard to the Offset Program (the third requirement), which does not negate the existence of a set of real and legal challenges that must be addressed and overcome (the fourth requirement).
Dr. Yousef Shandi
Abstract:
Modern jurisprudence focuses on the subject of “protecting the disadvantaged contract parties”, especially in special laws such as consumer, tenant and worker protection. The legislator, supported by jurisprudence, has established many concepts and provisions that protect the disadvantaged contract parties, including the imposition of a duty to inform for the interest of the former disadvantaged party to conclude the contract in order to conclude it in a free and clear manner, as well as giving the latter time to think and reflect, and sometimes the right to return the contract that was concluded, and give the judge a role in the face of arbitrary conditions that are against the interest of the disadvantaged party, and impose some formalities that will ensure the satisfaction of the latter with the contract, as well as other provisions.
However, this trend towards the protection of the disadvantaged party in contracts is no longer restricted to special laws, but is now a general trend that both the legislator and the judge seek to establish even within the general theory of contracts, in order to achieve a reasonable degree of balance between the rights and obligations of the parties to the contract, and achieve a sort of contractual justice.
The question arising in this regard is the following: do competition laws take this general approach towards protecting the disadvantaged party in contracts? If yes, how can the weakness of contracts be diagnosed under competition laws, and what provisions protect the disadvantaged party under these laws? These two questions justify that the relationship of strength and weakness may be achieved in relationships between traders themselves, between firms and institutions, or between professionals among themselves.
Accordingly, we will examine the legislative and juridical criteria on which to determine the weakness of contracts under competition laws and address a significant part of the provisions aimed at protecting the disadvantaged party in these laws, including abuse of dominant position, abuse of economic dependence, duty of information, arbitrary conditions and imposition of certain conditions in certain contracts subject to competition laws, such as concession contracts and commercial licenses.
All the foregoing points, depending on the comparative analytical approach, will be addressed by reference to competition laws in a number of Arab and foreign countries, including Jordan, Egypt, Kuwait and France, and the European directives in this regard, in a manner that serves the subject of study.
We will divide this paper into two sections: first, the criteria for estimating the weakness of competition laws, and the second, the provisions of the protection of the disadvantaged party in competition laws.
Dr. Lafi Daradkeh
Abstract:
The world is witnessing huge developments in the field of technology and its various uses in the Internet. Every day there is something new in the world of the Internet that reflects on the patterns of behavior of individuals and on the relations between them. This requires legislative intervention to regulate this new type of behavior and these new relations between the members of society. This race between technology and law always ends in favor of technology. The technological development comes first and translates into behavior and relations between individuals at the internal and international levels. Then the role of the law comes later to regulate this behavior and these relations after the formations of legal centers. In this transitional period, which may be extended for a long time, technology plays an important role in ensuring the rights of the parties in a certain relation. The technological action itself contains substantive and technical guarantees of high precision and safety, creating a great confidence for this new technical and substantive behavior. Therefore, it may be used as a means of communication between members of a community.
The most recent example of technological development in the financial and banking system is the use of digital currency. The first version, known as Bitcoin, was invented by an unidentified person as a natural or legal person known as Satoshi Nakamoto who issued it as an open source program in 2009. Bitcoin is an encrypted global currency, like other traditional currencies such as the dinar and the dollar. What distinguish the Bitcoin from other traditional currencies is that it is an encrypted digital currency that does not have a tangible physical presence. It is used on the Internet, and does not have any financial system or central banking system. Payment through this currency is done through peer-to-peer approach between users in a direct manner, without an intermediary through the use of the encryption system. Payments are verified through the network contract and recorded in a public and distributed account book called the block chain. Due to these technical and substantive guarantees in used the Bitcoin, the number of its users have increased significantly. This safe use of the digital currency is now entirely dependent on technical and substantive safeguards provided by technology, in the absence of a legal regulation, with the exception of some attempts by the European Union, and little intervention by some States.
Creators of this new currency did not wait for a legal regulation before the issuance and trading of this currency at the international and internal levels, which may take a long time causing their idea to lose its seriousness. Therefore, they sought an alternative to legal guarantees, and only bet on technical and substantive guarantees in their issuing and trading operations. With these technical and substantive guarantees they were able to generate trust among people regarding the safe use of this currency. Thus, it was used as a digital currency to fill in the place of traditional currencies. Many people have used this electronic currency to fulfill their needs knowing that there are no legal guarantees to protect them from the dangers of using this new currency. Some countries recognize this digital currency and treat it similarly to the traditional currency in financial and banking transactions. The more the individual is aware of the secrets of technological development in this digital currency, the more confident he/she is in depending on this currency than the average person. Furthermore, the more interested and confident the state of technological development, the sooner the digital currency shall be adopted than in other countries. For example, in Japan, Germany, Britain, Sweden, Canada and other technologically advanced countries were quick to recognize it as a digital currency treated as the traditional currency. In contrast, many countries took a cautious stance on this new currency and warned their citizens against using it as an alternative to the traditional currency in the absence of an internal or international legislative regulation of the digital currency.
This search raises many questions, and through answering these questions it will be possible to identify the concept of this digital currency and its importance and risks and compare it with the traditional currency, as well as to identify the technical and substantive guarantees regarding the mechanisms of issuance, access and trading of this currency. We will also try to look into the future and identify the position of national and international legislators regarding the nature and legal provisions of the Bitcoin, as well as forms of its abuse and the means of its legal protection. The success of this new currency poses another type of question in which we recognize the extent to which countries accept this international digital currency as a competitor to its national currency, which is a national symbol of the state and part of its history and sovereignty. We will also examine the new financial and banking system through which this digital currency is used.
GHALIB MOHAMMAD AL-BULOOSHI
ASSIATANT PROFESSOR OF COMMERCIAL LAW,
COLLEGE OF LAW- UNIVERSITY OF BAHRAIN
Abstract
Unlike conventional –financing, Islamic-financing, should adhere to values and principles of Islamic-Sharia. The Muslims and non-Muslims investors alike believe that the Islamic financial and banking operations are distinct and therefore remote from instability and immoral concerns attached to the conventional operations.
With the increase in number of Muslims and non-Muslims investors, Islamic finance and banking could have a significant role in the economic growth. However, its development is largely dependent on the recognition of its true potentials, which is reliant on the fact that it is Sharia-Compliant.
While, it is necessary to establish that the innovated instruments used in Islamic financial and banking operations are lawful an inconsistence with Sharia principles, the current modes of finance and banking are not free from doubt and in fact subject to Sharia non-compliance risk.
In this context, the paper addresses the diverse opinions of Sharia-Scholars in regard of Islamic financial operations to establish the undoubted need for the so-called Sharia-Compliance task. It notes that the current Islamic financial and banking practices are not free from serious legal and judicial challenges. Referring to case-rulings, it is strongly suggested that the mere approval of financial products or transactions by individual Sharia-Scholars or Institutional Sharia-Boards is not enough to build the level of trust and confidence needed for the evolvement of Islamic finance as an alternative financial industry.
In order to enhance the task of Sharia-Compliance, the paper points to the newly emerged trend of having a so-called Higher or Central Sharia Authority. Nonetheless, it notes that the aim behind the existence of such bodies in main could be to help in the harmonization of the Islamic financial and banking practices at the national level. To overcome the legal and judicial concerns related to the Sharia- Compliance task, the need is there for legislative and judicial changes, which should provide these bodies with real powers to closely supervise the Sharia-Compliance task and assign special courts to oversee this difficult task more efficiently.
Dr. Ahmad Ichrakieh
Abstract:
Companies are of great economic importance at the present time. Their strength, especially of incorporated enterprises, is presented through their ability to implement large projects. However, in the course of their journey, these companies and businesses may experience setbacks and obstacles that could lead to default and thus bankruptcy.
Many countries have sought, through their legislation, to develop solutions, not only to save companies from stumbling and to restore their operational capacity, but also to ensure the continuity of these companies in their activities by finding ways of financing them in light of the economic changes taking place in the world.
The traditional legal framework has addressed these problems. Initially, it sought to identify certain guarantees that would ensure the Company’s continuity and development in some cases, and to save them from stumbling in other cases (mergers, acquisitions, Coup d’occardeon, conciliation to avoid bankruptcy). Despite the efficiency of these traditional means, they can lead to the consumption of the company’s energy through long and complex legal procedures on the one hand, or through the risk of increasing the confidence in it on the other.
The risks of traditional means have led companies and banks to strive to play a restorative role for these instruments and to create modern and more flexible legal methods and guarantees along with the changing developments in the corporate world.
In many countries, notably France, the scope of research has expanded including legal safeguards in this changing world, highlighting some contracts, originally civil contracts, which may lead to the development of the company’s business by securing the necessary funding.
One of the most prominent of these contracts is the Porting Agreement (La Convention de Portage).
The Porting Agreement was introduced by the French jurisprudence in 1992 and has evolved to this day, but it has not gone beyond jurisprudence, as it has not been codified, nor has it reached a clear and unambiguous definition. However, the classical definition, as stated by Professor Cornu, is: “A contract by which a “seller” shall transfer the ownership of instruments (mostly shares) to another person called “the carrier” or the buyer, who in turn presents a written pledge to the seller to resell the instruments to him or to another person designated by the seller at a previously decided date and price”.
The importance of studying the “porting agreement” is presented in two main points. On the one hand, this contract is an indefinite contract inspired by civil contracts to be applied to commercial companies, is flexible because it is not codified in special texts, and the law does not specify its legal system. On the other hand, it consists of a lot of weakness, especially in terms of colliding with the invalidation of the conditions of the bond and confusion with other legal contracts dealing with financial instruments.
Therefore, it was necessary to question the importance of this agreement and its legal nature in addition to the conditions of its validity and its applicability in the Lebanese and Kuwaiti laws in the light of French law. On the other hand, one must question the extent to which it is considered a legal guarantee for companies in this changing world.
This paper presents for the first time in Lebanon and Kuwait this agreement for research. Studies on this subject are very rare or even non-existent in the Arab world, which is an additional importance to put forward and try to reach a set of conclusions and recommendations through a comparative study that establishes legal rules that fill gaps in this area.
Dr. Myra Williamson
Abstract:
Personal photos, messages, videos and e-mails: what protection should the law offer when such types of communications are posted on Facebook, Instagram, Whatsapp or Twitter, with the intention of haring another person ?
In New Zealand , the Harmful Digital Communications Act 2015 (HDCA) was passed[1] to address the problems created by electronic communications that harm others. The HDCA is the New Zealand legislature’s main legal response to combating the new challenge of cyber-bullying. The Act balances the right to freedom of expression against every individual’s right to privacy and protection from emotional harm in the digital age. It creates a new crime of causing harm by posting a digital communication.[2] It also provides a civil enforcement regime by which anyone can have harmful or illegal content removed.
This paper will address what the HDCA is, and also, what it is not. The HDCA does not aim to protect people from defamation (speech which harms reputation and is untrue) because other civil laws already do that. It does not seek to protect political figures or the government from criticism by journalist, Twitterers and bloggers- no law in NZ does that- since such criticism is protected by the ‘ freedom of expression’ provisions in the NZ Bill of rights Act 1990.[3]
This law has two aims. First, it aims to ‘deter, prevent and mitigate harm caused to individuals by digital communications’. [4] Second, it aims to ‘provide victims of harmful digital communications with a quick and efficient means of redress’.[5]
It is currently envisaged that the paper will be divided into five parts.
Part 1 will briefly explain the ‘mischief ’ that the law has sought to remedy including the Law Commission’s work in this area.[6] It will also review the fears that the HDCA would stifle freedom of expression.
Part 2 will highlight the key provisions of the Act, including its purpose and definitions. The most important concept of ‘harm’ is defined as ‘ serious emotional distress’. [7]The courts have so far interpreted this term broadly. The term ‘ digital communication’ is defined to include any form of electronic communication.[8] Thus , a crime is committed in NZ , if posting digital communications results in ‘ serious emotional distress’. This part will explain the civil and criminal regimes created by the Act. It will explain the 10 ‘ communication principles’.[9] It will describe the agency, called ‘Netsafe’ , which receives complaints from any individuals who believe they have been harmed. It has statutory power to refer any complaint to the district Court, which can inter alia order internet service providers to ‘ take down’ material and order apologies.
Part 3 will analyse some of the most important cases. In 2017, the Hight Court handed down its first decision on the HDCA.[10] There have only been three High Court and one Court of Appeal case to date. The case law on the HDCA is new and evolving, the latest decision having been issued in December 2017.
Part 4 may provide a brief comparative analysis, comparing the NZ legislation with a selection of comparable laws in other jurisdictions including Kuwait.[11]
Part 5 will conclude the paper by offering a brief set of recommendations in light of the NZ legislative experience. This part will also mention the New Zealand Centre for information and Communications Technology ( ICT) law at Auckland University. Such a centre has much to offer, providing advice, research and legal analysis on an area of rapidly evolving challenges. The current trend is that ICT law is emerging as an important course to be taught at universities both in NZ and globally.
This paper may provide useful insights to academics, policy-makers and legislators in other jurisdictions whose societies may be facing similar challenges and who may be considering the most effective legal response.
[1] The Harmful Digital Communications Act 2015 (HDCA) became law on 3 July 2015 (although parts of the Act came into force at different times).
[2] The crime carries a maximum sentence of two years in prison or a fine of up to $50,000 for individuals and $200,000 for companies.
[3] New Zealand Bill of Rights Act 1990, s 14: ‘Everyone has the right to freedom of expression, including the freedom to seek, receive and impart information and opinions of any kind, in any form’:
http://www.legislation.govt.nz/act/public/1990/0109/latest/DLM225513.htmal last accessed 8 January 2018.
[4] HDCA, s 3 (a).
[5] HDCA, s 3(b).
[6] Law Commission, Harmful Digital Communications : The adequacy of the current sanctions and remedies ( Ministerial Briefing Paper, August 2012, Wellington).
[7] HDCA, s 4.
[8] HDCA, s 4. An ‘intimate visual recording’ is separately defined in the same section.
[9] HDCA, s 6.
[10] Police v B [2017] NZHC 526 [ 14 March 2017].
[11] Kuwait’s Cyber Crimes Law no 63 came into effect on 12 January 2016. It was approved by the National Assembly on 16 June 2015.
Qingxiu Bu
Abstract:
As one of the most digitally ambitious regions in the world, the Gulf Cooperation Council (GCC) countries are responsible for a significant part of the global energy supplies. They are highly dependent on networked connectivity for their critical national infrastructure (CNI), including in the financial, banking and energy production. Cybercrime is an escalating threat to the GCC’s economies and to their plans for digital transformation. A failure to tackle cybercrime would imperil strategic development plans intended to diversify the GCC economies and reduce their reliance on the hydrocarbons sector. The development of cybercrime legal frameworks is essential to the management of cybersecurity risks. Having cybercrime laws to which all states adhere, and that are in line with international norms and standards, would support a safe, trustworthy and secure internet. Nevertheless, there are critical legal challenges and vulnerabilities inherent in the widespread use of cyberspace. Current policies and instruments are inadequate. The GCC states are inclined to favour strong sovereign and territorial control of their information infrastructure. Regulatory approaches to cybersecurity are still embryonic, and the GCC is yet to nurture a culture of regional and international cooperation. As such, the GCC cybercrime laws neither elaborate on procedural law nor provide a legal basis for interstate cooperation. This paper seeks to investigate how governments can encourage the development of a secure cyber environment using law and regulation. I will examine, at a national, regional and international level, both hard law and soft law in relation to cybercrime and data protection. The paper explores incident response, the problem of attribution, overlapping investigative and legal authorities, public-private partnerships (PPPs), and the necessity of international cooperation. This will entail building more resilient systems, deterring an attack, and responding after an incident.
The paper starts with conceptual clarity through striving to define actors, interests and methods in cybersecurity. This section reviews fundamental legal concepts, such as state sovereignty and jurisdiction in the cyber context, and examines the legal and policy regimes currently being developed for the cyber governance. Section II explores the best ways to help inform a more effective regional cyber security policy in the GCC countries. Section III discusses a strategy of collective defence. The PPPs will be explored to make sure that private critical infrastructure providers meet essential security standards. Section IV looks at the case of Aramco. It analyses whether the attack on Saudi Aramco was the work of political hackers or state-directed and section of an escalating cyberconflict. Section V focuses on GCC’s significant cybersecurity initiatives as well as their national statutory approaches, such as the Cybersecurity Capacity Building Programme 2017. It also examines the most up-to-date legal and policy developments in countering the cyber threat and the various governance arrangements currently in place. The final section suggests future trends in the legal and policy aspects of counter cyberattack. More significantly, I will seek how to translate research findings into effective policy.
Dr. Abdelalli Haha and Dr. Amel Tamam
Abstract:
Electronic surveillance is one of the methods of special investigation into corruption crimes, which was introduced by the Algerian legislator under Law No. 06/22 of 23 December 2006 amending and supplementing the Code of Criminal Procedure, which devoted a full chapter (chapter IV) to electronic surveillance under the title: “the interception of communications and audio and image recordings” in the articles of 65 bis 5 to 65 bis 10.
The Algerian legislator, by introducing this new mechanism for the investigation and prosecution of corruption crimes, has witnessed the developments of the international community in combating and proving crime through the use of advanced technological and electronic means.
Almost all agree that the use of electronic surveillance to reduce and combat corruption, although a procedure imposed by the development of crime and modern techniques used, but in violation of the right to privacy and individual freedoms.
From the above, the seriousness of this special procedure for investigation and the violation of the inviolability of private life is clear. However, in Algeria, due to the inability of the traditional research, investigation and follow-up procedures for the detection of corruption crimes characterized by the international dimension, its association with organized crime and its hidden nature, and in order to facilitate the collection of evidence relating to it, the Algerian legislator resorted to this method which raises many questions.
Therefore, the issue of electronic surveillance raises an important problem relating mainly to the extent to which the legislature, while resorting to this method to investigate and prove corruption crimes, to achieve the required balance between protecting the rights and private freedoms, which requires limiting these means on the one hand and the right of society to protect its security, which requires expanding the use of these mechanisms in order to detect and prove these crimes?
Therefore, the various national and international legislations have tended to strike a balance between these conflicting rights. The use of technology and digital technology in the collection and processing of personal data has left a difficult reality that threatened this balance.
The Algerian legislator, for his part, mentioned in the Code of Criminal Procedure and the Law on the Prevention and Combating Corruption several substantive and procedural guarantees that prevent the abuse of electronic surveillance by the public authority, so that the right to privacy may be infringed to the extent necessary to prove the crime and according to predefined legal conditions and procedures.
A number of questions arise from the above problematic, including: What is meant by interception of correspondences and audio and image recordings? How legitimate is electronic surveillance? What guarantees did the Algerian legislator make for the failure of the public authority to use this procedure?
In order to answer the raised problematic and the questions related to them, we have proposed the following plan:
First: The conceptual framework for electronic surveillance
Second: The legitimacy of the electronic surveillance system
Third: Guarantees of the legality of electronic surveillance
Dr. Walid ben Salah
Abstract:
The emergence and development of the Internet in the late 20th century has led to the emergence of new types of criminal behavior, where criminals and criminal organizations have made communication and communication technologies a means of committing crimes that are difficult to detect, prove and prevent. These technologies have become a distinctive tool for committing serious crimes such as fraud, embezzlement and money laundering.
Various countries have been aware of the danger posed by cybercrime, which has led to the enactment of legislation aimed at addressing, criminalizing and punishing them. Techniques have also been developed to detect such crimes (such as tracking bank transfers, intercepting correspondence …).
However, with the emergence of Dark Web and Crypto-currency, it is possible to transfer money across borders and to engage in illegal activities on the Internet anonymously using the Tor network. Bitcoin, the currency that no central bank has issued and which cannot be tracked, has become the preferred mode of payment in the virtual markets for illegal trade, where the arms, drugs and money laundering markets flourish.
This resulted in making the laws and measures that have been developed to combat cyber crimes useless, as users of the “Dark Web” encrypt their IP addresses, which makes it impossible to determine their locations, they also do not use traditional bank payment methods which makes tracking their transactions impossible.
The past few years have witnessed a doubling of cybercrime and electronic currency crimes, which led the authorities of several countries (such as the EU and South Korea …) to express their will to enact laws that would reduce the possibility of anonymous theft and encryption, in addition to regulating and amending e-currencies. If the Internet is a space of freedom, this freedom cannot be absolute. It should not affect the rights and dignity of persons or the integrity of financial transactions.
It is necessary to confront this new criminal threat, which does not care about time, place or laws, because while waiting for the application of strict rules, criminals continue to be strike and remain unpunished, their financial transactions, which have always depended on Bitcoin in the past, have diversified and are now shifting to alternatives digital media. This raises questions about the measures to be taken to address this new criminal threat, which poses unprecedented challenges to criminal law?
The aim of this research is to analyze the requirements of the most prominent Arab legislations related to the fight against cybercrime and to indicate their appropriateness to the risks posed by the dark internet and e-currencies, and to propose legal solutions that will ensure effective control of cybercrime in light of current developments.
Dr. Masoud bin Humaid al-Maamari
Abstract:
The special nature of cybercrime and the difficulties of proving this crime lead to the assertion that the special nature of cybercrime also requires evidence of a special nature, different from that of conventional crimes. The electronic crime requires evidence of the same nature, and these are the electronic evidences. This means that proving an electronic crime is based on the electronic evidence as the means to prove this crime and the evidence is generally considered to be one of the most important and accurate issues facing judicial justice in the separation of rights. The rules and means of proof are aimed at uncovering the truth, which is embodied in the end in the judgment issued by the judiciary. This is only by providing evidence that confirms the fact, whether it is the conviction or innocence of the accused. The evidence is what leads to revealing the truth, and in regards to electronic crime, the steady development of these types of crimes, the manner in which they are committed and the means used to implement them make crime fighters in a race against time in order to keep abreast of that development. It also makes judicial authorities keen to develop means to combat these crimes and means of proof. Following traditional methods is useless when combating such crimes, due to the problems caused by its immaterial nature and its intangible evidence. This development included the legal procedures taken in the collection of evidence and means to obtain it. In regards to procedures, authorities responsible for the gathering of evidence as well as investigation became aware of how to use the computer, how to maintain the evidence contained in it, as well as how to deal with modern devices and various technical means and extract evidence from them. As for access to these evidences, the development led to utilizing modern technology and its potential in accessing and extracting evidence. This has contributed to the fight against these crimes and the process of proving them, such as wire-tapping, surveillance cameras, modern recording devices, and tracking criminals on the Internet through their IP address.
Dr. Mohamad Habhab
Abstract:
Information technology has revolutionized intellectual information, serving now as the mainstay of people’s transactions in the various fields of financial, social and cultural life, and the cornerstone of the transition to smart governments and the building of a modern, advanced and powerful state. However, this development, which invaded the whole world, has created a dark dimension, which casts its shadow on both economic and security aspects.
On the one hand, the world’s cybercrime losses in 2016 were estimated at $ 650 billion, and the amount is likely to rise to more than $ 1 trillion by 2020.
According to recent reports issued in 2017, the Gulf region is not immune to the threat of cybercrime. The Gulf economy has suffered losses of $ 850 million due to software piracy, which is a real threat to both government and business communities.
On the other hand, there is no doubt that the Internet and its subsidiary services have created a large space for freedom of expression and circulation of information, but at the same time it has been used as a fertile environment and an effective means for organized gangs and terrorist groups to target the security of individuals and the interests and security of states. (Such as the dissemination of extremist ideas, money-laundering and the financing of terrorism …)
Punishment for the above-mentioned crimes is not a major legal problem, since most States have adopted in their legislation legal provisions that target such acts and determine appropriate punishment.
However, the real problem lies in the difficulty of proving the elements of these crimes and prosecuting the perpetrators until they are brought to justice. This is due to the following: either to the intangible nature of the Internet or to its international nature.
The non-physical nature of the network and the applications it gives users as IP Spoofing or Steganography, or Pharming have allowed criminals to hide and hindered their tracking. The enormous techniques available, such as the MONDEX technique, made terrorist financing and money laundering operations easy and without leaving any trace or evidence to prove the elements of the offense.
In the light of the above, the difficulty of applying the current rules of procedure that are not appropriate to the new nature of cybercrime is problematic, thus preventing access to criminals and evidence that helps to uncover the elements of these crimes.
The international nature of this network raises complex legal issues, such as jurisdiction. With the spread of crime among all the countries connected to the network, each of these states has the right to claim jurisdiction in its favor. This leads to what the great French jurist Michelle vivant called “Fragmentation of Jurisdictions”. On the other hand, the issue of international cooperation in the field of judicial adjudication and the implementation of foreign judgments is raised. This cooperation is often not possible, either because of a conflict of laws or the absence of international conventions allowing such cooperation.
Therefore, the importance of this research is to identify the legal gaps that hinder the application of the rules of criminal procedure in the UAE, Lebanon and Kuwait, by explaining its provisions and their relation to the current reality, especially since to our knowledge there is no Arab legislation that contains procedural criminal rules for cybercrime.
Therefore, we will attempt to use the analytical scientific method to produce some conclusions and recommendations that can establish legal rules that can deal with this type of crime, while guiding the French and American experiences in this context because they have a long standing at all levels of legislative, security and judicial.
Dr. Moath Sulaiman Al Mulla
Abstract
The right to be forgotten is one of the old ideas that emerged since the sixties of the last century. It once again came into surface when it’s idea collided with the technical reality’s imposed possibility of keeping personal data for unknown periods of time that could be difficult to erase from the virtual map, which takes away the right of users or dealers to fall into digital oblivion. This right has received great attention in Europe, especially after issuing the European Court of Justice’s judgment No. C-131/12 on 13 May 2014, which recommended that the European legislator to develop the necessary safeguards to protect this right. It responded to it, as the legislator expressly recognized this right in Article 17 of the new European Regulation No. 679/16 on Personal Data Protection, which will be effective on May 28, 2018. Therefore, we devote this study to explain the Kuwaiti legislator’s position on this issue in the penalizing part included in Modern Electronic legislations and compare it with the French penal legislator’s approach.
JOHN HART MINAN
Abstract:
My proposal is relevant to the following conference theme stated in the call for papers: “The role of civil society organizations in promoting rights and freedoms and addressing violations.” The human right of access to clean water is the “right and freedom” at the center of my proposed research.
As the former chairman of a California water agency tasked with the enforcement of the federal and state water pollution laws, I have practical and scholarly experience with the importance of citizen participation in promoting and protecting water resources.
This topic is critically important. The United Nations Conference on the Human Environment has declared that access to clean water is an absolute and fundamental human right. Yet, it also reports alarming statistics on the impact water pollution has on human health and mortality. Every nation, whether wealthy or poor, is impacted and at risk from inadequate access to clean water. The problem transcends political borders.
The state is the principal protector of the right to water that is free from harmful water pollutants. This obligation is not of recent origin. Early Roman law, for example, declared that certain water resources are held by the state in trust for the people and for the benefit of its citizens. This obligation continues to exist today.
But often the public agencies responsible for ensuring clean water fall short. Political pressures, economic forces, and other factors may contribute to this failing. One solution to this shortcoming is to develop an adequate legal theory of enforceable public rights authorizing citizens to use the courts to enforce those obligations through “citizen suits.” This approach generally requires the grant of standing to citizens to pursue appropriate remedies through the judicial system.
The goal of citizen suits is not to provide compensation for injuries, but rather to ensure more effective enforcement of clean water laws. Thus, citizen suits allow citizens to act as “private attorneys general” by permitting them to sue private organizations or individuals alleged to be in violation of clean water laws. They also authorize suits against public officials who fail to carry out mandatory obligations, such as the promulgation of required regulations or enforcement of the law. The availability and use of citizen suits continues to be extremely important to the promotion of rights and freedoms by allowing private citizens to have a direct public role in enforcing clean water laws.
The proposed research will explore the most recent use of clean water citizen suits in the United States. It will explore the following: 1) Who is a proper plaintiff? 2) Who is a proper defendant? 3) What are actionable violations? 4) What procedural requirements exist? 5) What government action bars citizen suits? 5) When is citizen intervention in pending litigation allowed? 6) What are the available remedies, including attorney fees?
Dr. Giovanni Gruni
Assist. Prof. in European Union Law and WTO Law
European Institute – Faculty of Governance and Global Affairs-
Leiden and Den Haag – Netherlands
Abstract:
Opinion 2/15 provides an undisputable exclusive competence to the EU for the inclusion of labour and environmental standards in EU Free Trade Agreements (FTAs). However, most of the possible policies to include sustainable development in world trade law would affect trade clauses of FTAs and World Trade Organization law for which the exclusive competence of the EU was not in doubt (e.g. free movement of goods and services, intellectual property). Accordingly, a holistic approach of the EU considering sustainability issues when negotiating any aspects of international trade treaties is required if sustainable development is to play a role in the future of world trade law. The article is divided in two parts. First this article highlights potential consequences of Opinion 2/15 for the trade policy of the European Union in three areas: sustainable development clauses, trade negotiations and the participation of the EU in the WTO. Then the article looks more closely to the case of labour standards and proposes a procedure to make them enforceable in free trade agreements between the EU and third countries like CETA. This new proposed procedure would allow the EU to go beyond its present model of voluntary enforcement which has proved to be not effecting in ensuring the respect of labour standards. The procedure is divided in four steps: admission requirements, internal investigation, panel in the free trade agreement and executive measures.
Dr. Ahmad Suliman Al- Otaibi
Assist. Prof.- Public Law – KILAW
Abstract
This study was conducted to answer vital questions regarding the legal basis for the right to a clean environment. The most important of which include the following: What is the nature of this right? What is the origin of this right? What is the role of the state and the concerned establishments to govern and protect this right?
These significant questions were answered in the study within two main sections. The first section revealed the source of the right to a clean environment in Islam, International and Regional Conventions, Constitutions and National Laws. The second section of the study examined the right to a clean environment within the Kuwaiti Legal System, and sheds light on the role of central establishments (i.e. The Executive, Legislator, and the Judiciary) in protecting the right in State of Kuwait.
Key Words:
The Legal Basis for the Right to a Clean Environment, the Right to a Clean Environment, Clean Environment, the Right to a Clean Environment in the Constitution of the State of Kuwait, the role of the Executive to protect the right.
Rahima Ansar
Abstract:
Anthropogenic climate change is challenging the established legal order, stability and development of states. As effect of climate change will be unevenly distributed it will lead to inequalities within and among nations, and between current and future generation, leading to injustice. Small Island states whose contribution to global warming is negligible compared to global emissions are among the first and worst affected by climate change. Their total combined annual carbon dioxide output accounts for less than 1% of global emissions. Slow onset sea level rise threatens the basic subsistence, livelihoods, homes, property and homelands of islanders. Intergovernmental Panel on Climate Change Report affirms the vulnerability of small island developing states (SIDS) to the threat posed by climate change as its citizen’s right to life, food water and health are severely affected. Threatened by inundation these islanders are forced to relocate and resettle to other countries without protection under international law and with few resources for resettlement. Climate justice requires that all states take action to reduce greenhouse gas emission and help SIDS with resources to adapt to climate change and compensation for loss and damage from its impacts.
The parties to the 1992 United Nations Framework Convention on Climate change and the 2015 Paris agreement has agreed to be guided by the principles of equity and common but differentiated responsibilities and relative capacities as per the national capacities. Climate change litigations are playing an instrumental role in forcing the government to ensure its course of action with respect to climate change. States, civil society and environmental groups are working together to hold private corporations and other appropriate actors also accountable for their greenhouse gas emissions. Consistent efforts of SIDS have led to the adaptation of Warsaw International Mechanism for Loss and Damage under the climate change convention which is now entrenched in Art 8 of the Paris Agreement 2015. The research looks into the effectiveness of these measures in helping SIDS cope with the adverse effects of climate change.
