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Laws, Volume 11, Issue 1 (February 2022) – 15 articles

Cover Story (view full-size image): This article describes 19 recommendations that could be adopted by the Financial Action Task Force (FATF) to fight corruption and money laundering. Regulations may be changed in a way that would force front men into cooperation agreements where they would testify against the criminals who orchestrate corrupt activities. This would be accomplished by requiring true beneficial owners to self-certify beneficial ownership whenever funds are transmitted in amounts exceeding USD 3000. Any person who "certifies" beneficial ownership but is not in fact the true beneficial owner would be forced to cooperate or face criminal penalties. The article provides guidance regarding domestic conforming legislation, answers questions, and explains the rationale for expansion of existing FATF recommendations. View this paper.
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Article
The Application of the Environment Act 2021 Principles to Carbon Capture and Storage
Laws 2022, 11(1), 15; https://doi.org/10.3390/laws11010015 - 18 Feb 2022
Viewed by 1218
Abstract
Carbon Capture and Storage (CCS) is a new technology considered to have the potential to decarbonise economies. However, nationally and internationally the use of CCS has also been raising concerns about its potential global risks and adverse impacts on the environment. CCS was [...] Read more.
Carbon Capture and Storage (CCS) is a new technology considered to have the potential to decarbonise economies. However, nationally and internationally the use of CCS has also been raising concerns about its potential global risks and adverse impacts on the environment. CCS was part of the discussions at the fourth United Nations Environment Assembly (UNEA) in March 2019 and in side-events in the 26th UN Climate Change Conference that took place in Glasgow in November 2021. The UK Government aims to deploy CCS at scale during the 2030s, subject to cost reduction. At the same time, the UK Government has recently enacted the Environment Act 2021, which provides a set of five environmental principles: the integration principle, the principle of preventative action, the precautionary principle, the rectification at source principle and the polluter pays principle. This work seeks to analyse the application of the UK environmental law principles to carbon capture and storage policies in the United Kingdom and its balance with other considerations. Given the concerns surrounding the use of CCS, the debate about its legality may arise in the United Kingdom and in other countries. To this end, this paper initially carries out a systematic review of CCS policy documents to discover the policy considerations that support the development of CCS. It then examines the application of the UK environmental law principles to CCS initiatives and its balance with other considerations, such as reduction of carbon emissions, security of energy supply, economic growth and technological leadership. In doing so, this paper aims at contributing to the debate surrounding recent technological developments that have been utilised to help address climate change and some of the legal challenges emerging through the use of CCS under UK environmental law. Full article
(This article belongs to the Special Issue Environmental Law)
Article
Can Restorative Justice Provide a Better Outcome for Participants and Society than the Courts?
Laws 2022, 11(1), 14; https://doi.org/10.3390/laws11010014 - 14 Feb 2022
Viewed by 1572
Abstract
This article will examine understandings that underpin restorative justice outcomes for participants in order to propose that restorative justice conferences may provide better outcomes for participants than the formal courts of the criminal justice system. The analysis will attempt to shed light on [...] Read more.
This article will examine understandings that underpin restorative justice outcomes for participants in order to propose that restorative justice conferences may provide better outcomes for participants than the formal courts of the criminal justice system. The analysis will attempt to shed light on the benefits of the restorative justice conferencing process. These benefits will be shown to include positive individual and community outcomes, which ‘restore’ participants in a manner which may be closer to concepts of ‘justice’ than the formal court process. Full article
(This article belongs to the Special Issue Advancing Restorative Justice in Criminal Justice Settings and Beyond)
Review
Some Implications of the Development of E-Commerce on EU Tax Regulations
Laws 2022, 11(1), 13; https://doi.org/10.3390/laws11010013 - 10 Feb 2022
Viewed by 1313
Abstract
E-commerce has progressed within Europe before, on the basis of the pre-pandemic raise, with COVID-19 determining an explosion of its evolution. The European e-commerce market is very important, linking together more than 500 million consumers. This paper presents the results of assessing the [...] Read more.
E-commerce has progressed within Europe before, on the basis of the pre-pandemic raise, with COVID-19 determining an explosion of its evolution. The European e-commerce market is very important, linking together more than 500 million consumers. This paper presents the results of assessing the guidelines and trends observed in the European regulatory process in the current period, when e-commerce is developing appreciably, studying the applicable legal norms and their effects on facilitating the control of remote payments. Compliance with the VAT (value-added tax) regime is addressed in the context described by the two important categories of active legal rules: the rules for consumer protection and the rules related to ensuring data protection. The investigation of the legal framework in this regard started from the presupposition that the necessary changes in regulation for facilitating e-commerce are capable to determine indirect changes in many aspects of financial rules and taxation. While analyzing the regulation of online trade, the various measures undertaken recently in respect to European sources of law and their implications for national legal framework opened additional directions of investigation. This paper points out the indirect effect of e-commerce development on the regulatory framework, both in the area of consumer protection and in line with the difficult balance between the right to information and protection of data. The fiscal effects of e-commerce payments and the challenges for the value-added tax regime are also addressed, both from a theoretical point of view and with input from the Court of Justice of the European Union’s jurisprudence. The analyzed documents show that, in this respect, the legal reform will go deeper and will continue with the rhythm of the development of the online activities. Full article
(This article belongs to the Special Issue Legal-Economic Issues of Digital & Collaborative Economy)
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Article
Women’s Organisations’ Role in (Re)Constructing the Narratives in Femicide Cases: Şule Çet’s Case
Laws 2022, 11(1), 12; https://doi.org/10.3390/laws11010012 - 07 Feb 2022
Viewed by 1407
Abstract
In 2020, men in Turkey murdered 300 women, and 171 women were found suspiciously dead. The dominant narrative around suspicious death cases involves a faulty assumption that women are prone to committing suicide. Women’s organisations and cause lawyers unite against all kinds of [...] Read more.
In 2020, men in Turkey murdered 300 women, and 171 women were found suspiciously dead. The dominant narrative around suspicious death cases involves a faulty assumption that women are prone to committing suicide. Women’s organisations and cause lawyers unite against all kinds of violence to challenge this dominant narrative, which grants impunity to perpetrators. Drawing on resource mobilisation theory, this article investigates how women’s organisations become involved in femicide and suspicious death cases to articulate counter-narratives and advance women’s access to justice. It focuses on Şule Çet’s case, which raised intense public reactions due to the lack of procedural fairness at the investigation stage. It relies on semi-structured interviews with Şule’s lawyer and the members of the We Will Stop Femicide Platform (Kadın Cinayetlerini Durduracağız Platformu) and the Gelincik Centre (Gelincik Merkezi) to illustrate how women’s organisations made Şule’s story visible and countered the dominant narrative surrounding suspicious death cases. The findings illustrate that women’s organisations’ ongoing struggle to encourage courts to hear women’s stories demands co-operation between different social and legal mechanisms. It includes a combination of several strategies, such as following femicide cases and forming public opinion through social media. The article concludes by arguing that women’s organisations’ use of counter-narratives transforms femicide cases from being only a statistic to a public cause, contributing to women’s struggle in accessing justice. Full article
(This article belongs to the Special Issue The Body Politic: Women’s Bodies and Political Conflict)
Article
The Unaccompanied Child’s Right to Legal Assistance and Representation in Asylum Procedures under EU Law
Laws 2022, 11(1), 11; https://doi.org/10.3390/laws11010011 - 29 Jan 2022
Viewed by 1536
Abstract
The independent migration of children today is a global phenomenon present in many regions worldwide, where unaccompanied minors seeking asylum do not enjoy full protection of their rights. Among their procedural safeguards, the right to legal assistance and representation is a fundamental right [...] Read more.
The independent migration of children today is a global phenomenon present in many regions worldwide, where unaccompanied minors seeking asylum do not enjoy full protection of their rights. Among their procedural safeguards, the right to legal assistance and representation is a fundamental right strictly related to the realization of other rights contained in the UN Convention on the Rights of the Child. Nevertheless, despite the fundamental role that guardians and legal advisors play in the wellbeing of unaccompanied children seeking asylum, many issues are currently affecting the exercise and implementation of this fundamental right in several European Union Member States. Therefore, the purpose of this article is to examine the content and scope of protection of this right under EU law, while highlighting the existence of possible ambiguities or gaps in current legal standards. Which EU law rules currently protect unaccompanied minors’ access to legal assistance? What changes are necessary in order to strengthen that protection for unaccompanied minors seeking asylum? These are some of the questions that this paper addresses in order to critically analyze the level of protection that Europe has provided to unaccompanied children’s right to legal assistance. Full article
(This article belongs to the Special Issue Migrants and Human Rights Protections)
Editorial
Acknowledgment to Reviewers of Laws in 2021
Laws 2022, 11(1), 10; https://doi.org/10.3390/laws11010010 - 29 Jan 2022
Viewed by 1244
Abstract
Rigorous peer-reviews are the cornerstone of excellence in academic publishing [...] Full article
Article
Nudging and Other Behaviourally Based Policies as Enablers for Environmental Sustainability
Laws 2022, 11(1), 9; https://doi.org/10.3390/laws11010009 - 25 Jan 2022
Cited by 1 | Viewed by 1221
Abstract
Recent years have shown that traditional regulatory techniques alone are not effective in achieving behaviour change in important fields such as environmental sustainability. Governments all over the world have been progressively including behaviourally informed considerations in policy and law making with the aim [...] Read more.
Recent years have shown that traditional regulatory techniques alone are not effective in achieving behaviour change in important fields such as environmental sustainability. Governments all over the world have been progressively including behaviourally informed considerations in policy and law making with the aim of improving the acceptance and impact of sustainability-oriented measures. This led to the arrival of alternative regulatory tools, such as nudges. The effectiveness of nudges for environmental sustainability (green nudges) has been widely reported, but the practical and ethical implications are still largely neglected by academic research. In this contribution, “nudges” are conceptually distinguished from “boosts” and their ethics are briefly explained. The analysis is made in light of European and US American academic literature. Full article
(This article belongs to the Special Issue Facilitating Sustainable Consumption through Private Law)
Article
New Financial Action Task Force Recommendations to Fight Corruption and Money Laundering
Laws 2022, 11(1), 8; https://doi.org/10.3390/laws11010008 - 17 Jan 2022
Cited by 1 | Viewed by 1304
Abstract
A model Anticorruption Protocol to the United Nations Convention against Corruption (APUNCAC) would implement international requirements to report the beneficial ownership of funds involved in certain financial transactions. The purpose is to discourage laundering of illicit funds by attaching legal consequences to each [...] Read more.
A model Anticorruption Protocol to the United Nations Convention against Corruption (APUNCAC) would implement international requirements to report the beneficial ownership of funds involved in certain financial transactions. The purpose is to discourage laundering of illicit funds by attaching legal consequences to each failure to obtain and submit a required report of beneficial ownership, and each failure by a front man who poses as a beneficial owner to supply true information regarding the identity of the actual beneficial owner. This article is the fourth in a series of articles describing APUNCAC’s anti-money laundering (AML) provisions and focus on beneficial owner transparency. The companion articles focused on issues regarding international jurisdiction and enforcement of APUNCAC regarding distant offshore personnel and illustrated the application of APUNCAC to specific money laundering channels. This article translates APUNCAC’s key provisions into proposed Financial Action Task Force (FATF) recommendations, provides guidance regarding the necessary domestic conforming legislation, responds to frequently asked questions, and discusses the rationale for expansion of existing FATF recommendations. Full article
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Article
The Challenges of Political Corruption in Australia, the Proposed Commonwealth Integrity Commission Bill (2020) and the Application of the APUNCAC
Laws 2022, 11(1), 7; https://doi.org/10.3390/laws11010007 - 13 Jan 2022
Cited by 1 | Viewed by 1910
Abstract
Political corruption affects each nation-state differently, but the outcomes are nominally the same: a deficit of public trust, weakened government institutions and undermined political systems. This article analyzes issues of political corruption in Australia by framing them within a national integrity ecosystem (NIE) [...] Read more.
Political corruption affects each nation-state differently, but the outcomes are nominally the same: a deficit of public trust, weakened government institutions and undermined political systems. This article analyzes issues of political corruption in Australia by framing them within a national integrity ecosystem (NIE) and addressing them against the proposed Commonwealth Integrity Commission (CIC) 2020 bill. It also discusses prevalent ‘grey’ areas of Australian politically-corrupt behavior where they interact with the private sector: the revolving door, political donations, and lobbying; and the state of Australia’s implementation of the OECD Anti-Bribery Convention. This article argues for their inclusion within the mandated scope of the proposed CIC. There is a need for strong legislation, both domestic and international, to fight corruption. This article then discusses the application of the provisions of the draft Anticorruption Protocol to the UN Convention Against Corruption (APUNCAC) that may apply with respect to these ‘grey’ issues, and how an International Anti-Corruption Court may provide another institutional model for Australia to follow. Finally, this article links these proposals to the 2021 UN General Assembly Special Session (UNGASS) on Corruption and the 9th Conference of States Parties on the UNCAC (COSP9). These events illustrate multilateral momentum and progress on anti-corruption. As a country that has historically supported the UN multilateral framework and its institutions, this article recommends a proactive approach for Australia so that the passing of a strong domestic anticorruption initiative will contribute to the adoption, and eventual ratification, of the APUNCAC. Full article
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Editorial
Ambitions and Critiques of Restorative Justice Post COVID-19
Laws 2022, 11(1), 6; https://doi.org/10.3390/laws11010006 - 11 Jan 2022
Viewed by 1276
Abstract
The COVID-19 pandemic did not only change how we work with others and deliver public services, but also our very way of living. Furthermore, the way we view and experience conflict and violence will never be the same. Therefore, changes anticipated in relation [...] Read more.
The COVID-19 pandemic did not only change how we work with others and deliver public services, but also our very way of living. Furthermore, the way we view and experience conflict and violence will never be the same. Therefore, changes anticipated in relation to justice and criminal justice will be unprecedented, with criminal justice institutions such as prisons, courts and probation to be reviewed whether for financial, political or health and safety-related reasons. This Editorial introduces this Special Issue, which focuses on highlighting both the ambitions but also critiques of the role that restorative justice can play in the post COVID-19 era. Full article
(This article belongs to the Special Issue Ambitions and Critiques of Restorative Justice Post COVID-19)
Article
ISIL in Iraq: A Critical Analysis of the UN Security Council’s Gendered Personification of (Non)States
Laws 2022, 11(1), 5; https://doi.org/10.3390/laws11010005 - 10 Jan 2022
Viewed by 1177
Abstract
Legal feminist theories have troubled dominant conceptions of statehood, revealing the threat of the ‘Other’ as integral to the hegemonic masculinity of powerful states. In this paper I provide a critical gendered discourse analysis of the UN Security Council’s response to the Islamic [...] Read more.
Legal feminist theories have troubled dominant conceptions of statehood, revealing the threat of the ‘Other’ as integral to the hegemonic masculinity of powerful states. In this paper I provide a critical gendered discourse analysis of the UN Security Council’s response to the Islamic State of Iraq and Syria (ISIL). I consider the role of personification in constituting legal subjects as states (persons) and excavate this from the Council’s resolutions concerning Iraq. In constituting ISIL as a barbaric, hypermasculine terror group in relational opposition to the state of Iraq, the Council draws on gendered normativities ordinarily veiled by seemingly objective legal criteria as to the creation of states. Whilst the state of Iraq is constituted through the hegemonic model of statehood, one premised upon democratic, liberal Westphalian ideals, it is still subject to the paternalism of the Security Council. In this way, the state of Iraq is framed as failing to reach a particular masculine standard of statehood, and is thus subject to the continuation of ‘civilising’ discourses. Thus, instead of asking whether ISIL is or is not a state under international law, it is revealing to consider how responses to it work to maintain and (re)produce a graded, hierarchical international community of states. Full article
(This article belongs to the Special Issue Normativities of Sex: Past, Present, Future)
Article
Practitioner Perspectives on a Restorative Community: An Inductive Evaluative Study of Conceptual, Pedagogical, and Routine Practice
Laws 2022, 11(1), 4; https://doi.org/10.3390/laws11010004 - 30 Dec 2021
Viewed by 1417
Abstract
The purpose of this study is to explore restorative practice (RP) within education, highlighting practitioner views from an inductive evaluative perspective. This is in response to the suggested ambiguity over what constitutes RP in education. Practitioner perspectives are explored, providing an insight into [...] Read more.
The purpose of this study is to explore restorative practice (RP) within education, highlighting practitioner views from an inductive evaluative perspective. This is in response to the suggested ambiguity over what constitutes RP in education. Practitioner perspectives are explored, providing an insight into an established restorative school. New data offer further clarity on RP in education by describing embedded practice and highlighting sites for further specific task analysis. Methods include semi-structured questionnaires in the form of employee practice statements, situated within insider research. Eleven practice statements were completed, which were then subject to in-depth thematic analysis. The main findings of this study suggest that RP is clearly understood in this educational setting and participants described a wholistic approach that is part of a wider culture, not just practice as an intervention. Analysis suggests that this can be categorised into the following three themes: Conceptual, Pedagogical and Routine Practice. When used alongside one another, it is suggested that these themes create a restorative paradigm, which is of relevance to the field of education. As such, this paper is designed to provide a useful resource for schools, policy makers and researchers alike. Full article
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Article
Medical Applications of Artificial Intelligence (Legal Aspects and Future Prospects)
Laws 2022, 11(1), 3; https://doi.org/10.3390/laws11010003 - 29 Dec 2021
Cited by 1 | Viewed by 1296
Abstract
Background: Cutting-edge digital technologies are being actively introduced into healthcare. The recent successful efforts of artificial intelligence in diagnosing, predicting and studying diseases, as well as in surgical assisting demonstrate its high efficiency. The AI’s ability to promptly take decisions and learn independently [...] Read more.
Background: Cutting-edge digital technologies are being actively introduced into healthcare. The recent successful efforts of artificial intelligence in diagnosing, predicting and studying diseases, as well as in surgical assisting demonstrate its high efficiency. The AI’s ability to promptly take decisions and learn independently has motivated large corporations to focus on its development and gradual introduction into everyday life. Legal aspects of medical activities are of particular importance, yet the legal regulation of AI’s performance in healthcare is still in its infancy. The state is to a considerable extent responsible for the formation of a legal regime that would meet the needs of modern society (digital society). Objective: This study aims to determine the possible modes of AI’s functioning, to identify the participants in medical-legal relations, to define the legal personality of AI and circumscribe the scope of its competencies. Of importance is the issue of determining the grounds for imposing legal liability on persons responsible for the performance of an AI system. Results: The present study identifies the prospects for a legal assessment of AI applications in medicine. The article reviews the sources of legal regulation of AI, including the unique sources of law sanctioned by the state. Particular focus is placed on medical-legal customs and medical practices. Conclusions: The presented analysis has allowed formulating the approaches to the legal regulation of AI in healthcare. Full article
Article
Genetic Discrimination in Access to Life Insurance: Does Ukrainian Legislation Offer Sufficient Protection against the Adverse Consequences of the Genetic Revolution to Insurance Applicants?
Laws 2022, 11(1), 2; https://doi.org/10.3390/laws11010002 - 29 Dec 2021
Viewed by 1157
Abstract
This paper presents an inter-disciplinary study of the risk for, and protections against, genetic discrimination in access to life insurance in Ukraine. It aims (i) to review questions related to genetic information, health status, and family history currently included in Ukrainian life insurance [...] Read more.
This paper presents an inter-disciplinary study of the risk for, and protections against, genetic discrimination in access to life insurance in Ukraine. It aims (i) to review questions related to genetic information, health status, and family history currently included in Ukrainian life insurance application forms; (ii) to analyze the Ukrainian legislation related to equity and nondiscrimination and to determine whether it provides adequate protection against genetic discrimination (GD). Research findings of our insurance application forms review show that Ukrainian life insurance companies ask broad questions about health and family history that may be perceived by applicants as requiring the disclosure of their genetic information. Our legal analysis shows that today there are no genetic specific law protecting Ukrainians people against GD in insurance. However, Ukrainian human rights legislation provides some protection against multiple grounds of discrimination and given the ratification by Ukraine of the European Convention on Human Rights it is possible that these grounds could be interpreted by tribunals as also including genetic characteristics. As a next step, Ukrainian researchers should develop a survey to obtain much needed data on the incidence and impact of GD in Ukraine. Following this it will be possible for policymakers to better assess whether there is a need for an explicit non-GD law in this country. Such a law would have the benefit of explicitly aligning Ukraine’s legal framework with that of many of its European partners. Full article
(This article belongs to the Special Issue 10th Anniversary of Laws — Feature Papers)
Article
Queering Marriage: The Homoradical and Anti-Normativity
Laws 2022, 11(1), 1; https://doi.org/10.3390/laws11010001 - 21 Dec 2021
Viewed by 1663
Abstract
This article explores ‘bad’ sex in an age of same-sex marriage, through an analysis of the ‘homoradical’ as a rejection of both hetero and homo-normativities. Drawing on qualitative data from 29 LGBTQ interviewees, the article considers resistance to the discursive privileging of same-sex [...] Read more.
This article explores ‘bad’ sex in an age of same-sex marriage, through an analysis of the ‘homoradical’ as a rejection of both hetero and homo-normativities. Drawing on qualitative data from 29 LGBTQ interviewees, the article considers resistance to the discursive privileging of same-sex marriage in the context of Gayle Rubin’s theories of respectability and sexual hierarchies. These hierarchies constitute a ‘charmed circle’ of accepted sexual practices which are traditionally justified by marriage, procreation and/or love. It examines non-normative sexuality through the example of the lived experiences of non-normative, anti-assimilationist identities, particularly non-monogamy, public sex, and kink sex, showing how the ‘homoradical’ deviates from the normative practices that same-sex marriage reinforces. Full article
(This article belongs to the Special Issue Normativities of Sex: Past, Present, Future)
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