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Article
Publication date: 1 January 2006

Elia Marzal

The object of this research is the reconstruction of the existing legal response by European Union states to the phenomenon of immigration. It seeks to analyse the process…

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2451

Abstract

Purpose

The object of this research is the reconstruction of the existing legal response by European Union states to the phenomenon of immigration. It seeks to analyse the process of conferral of protection.

Design/methodology/approach

One main dimension is selected and discussed: the case law of the national courts. The study focuses on the legal status of immigrants resulting from the intervention of these national courts.

Findings

The research shows that although the courts have conferred an increasing protection on immigrants, this has not challenged the fundamental principle of the sovereignty of the states to decide, according to their discretionary prerogatives, which immigrants are allowed to enter and stay in their territories. Notwithstanding the differences in the general constitutional and legal structures, the research also shows that the courts of the three countries considered – France, Germany and Spain – have progressively moved towards converging solutions in protecting immigrants.

Originality/value

The research contributes to a better understanding of the different legal orders analysed.

Details

Managerial Law, vol. 48 no. 1/2
Type: Research Article
ISSN: 0309-0558

Keywords

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Article
Publication date: 3 November 2014

Andreas Norrman and Oskar Henkow

Logisticians propose changes to improve supply chains, and legal practitioners do likewise, but from a different perspective. Proposals from one domain increasingly have…

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1669

Abstract

Purpose

Logisticians propose changes to improve supply chains, and legal practitioners do likewise, but from a different perspective. Proposals from one domain increasingly have an impact on the other due to e.g. globalization – but cross-disciplinary knowledge often seems limited. The purpose of this paper is to facilitate interaction between the domains by increasing the level of joint understanding of the principles used in each domain, and to look at the potential frictions and challenges.

Design/methodology/approach

Management principles for efficient logistics and supply chain management as well as key principles governing the legal systems are summarized on both a paradigmatic and an action level. Illustrations from practice are presented. These have been obtained by a cross-functional team which has interviewed both logisticians and lawyers. Findings are based on cross-functional comparative analysis of principles and illustrations.

Findings

Frictions between operational principles were found to exist in each domain, with some principles harder to reconcile than others. There are also challenges between the two paradigms of logistics and law that influence the operational principles.

Research limitations/implications

One implication is that the knowledge gap, challenges and frictions between the professions and domains, both in practice and academia, would benefit from more research.

Practical implications

Although it may seem trivial, logisticians and lawyers need to cooperate better. The research shows on a fundamental level, with practical examples, the challenges and frictions that occur.

Originality/value

The cross-functional approach with law, and the discussion and comparison of principles.

Details

International Journal of Physical Distribution & Logistics Management, vol. 44 no. 10
Type: Research Article
ISSN: 0960-0035

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Article
Publication date: 23 May 2008

Reza Djojosugito

The purpose of this paper is to outline the principles of and legal risk faced by Islamic banking and suggest necessary steps to mitigate them.

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4005

Abstract

Purpose

The purpose of this paper is to outline the principles of and legal risk faced by Islamic banking and suggest necessary steps to mitigate them.

Design/methodology/approach

The paper examines ideal concept of Islamic banking and its practice. A range of publication is used, however the bulk of it concerns existing practices to provide practical insight on the subject rather than theoretical discourse. The paper is sorted into sections: Introduction, Islamic banking system, existing practices, legal risk and proposed reform.

Findings

Islamic banks face risks stemming from legal structure chosen due to the differences between principles of Shariah and law. While compliance to Shariah is paramount for Islamic banks, the law governing Islamic banking transactions may not necessarily give any consideration to Shariah. The paper elaborates legal risk exposed to parties to Islamic banking transactions encompassing the issues of the capacity of the parties to enter into a contract and its enforceability, uncertainty in laws, regulations, and legal actions pertaining to Shariah; as well as the legality of Islamic financial instruments.

Research limitations/implications

The paper reviews relevant laws and regulations related to Islamic banking, however no specific reference to any particular jurisdiction.

Practical implications

This paper is a source of information for those in the Islamic banking industry without legal background or lawyer new to it.

Originality/value

This paper touches upon a new area, the legal risk due to the divergence between the principle of Shariah and law. It offers practical insight into the legal aspect of Islamic banking operations.

Details

Humanomics, vol. 24 no. 2
Type: Research Article
ISSN: 0828-8666

Keywords

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Article
Publication date: 22 June 2010

Muhammad Abu Sadah

The purpose of this paper is to examine the main contract principles which govern the international arbitration contract with special emphasis to examine contract principle

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1036

Abstract

Purpose

The purpose of this paper is to examine the main contract principles which govern the international arbitration contract with special emphasis to examine contract principle found of the Middle East, how international principles of contract are perceived in the region, and whether there are any dominant contract principles.

Design/methodology/approach

A general exploratory research procedure used to give a better grasp of various aspects of socio‐legal approaches. The paper seeks to create knowledge that can be used to retrieve some pressing social and organisational understanding in the said region. The first part of the paper examines the role of ethics and tradition in understanding Middle Eastern contract principles. The second part examines the impact of Islamic Law on commercial contract principles. The third section analyses the regional perception of international contract principles. Finally, the paper addresses some contemporary issues of international contracts in the Middle East.

Findings

The paper showed that the legal perceptions of international contract principles reflect regional legal thinking which has been influenced by a mixed understanding of regional traditions, Islamic contract law principles as well as Western contract principles when these principles match regional legal culture. Overall, it showed that still under such mixed understanding, there are strong regional legal traditions and these are found in Islamic contract principles and affects commercial contract experiences. In general, a significant difference still exists between modern international contract principles and those in the Middle East.

Practical implications

The paper generates a knowledge that mixed understanding in regard to international contract arbitration principles due historical and cultural reasoning. Arab States does not share common understanding of international contract principles. Thus, it is very superfluous to propose the argument that there is sole Middle Eastern regional perception which dominates every Arab State. Therefore, special understandings and considerations should be given to every international arbitration contract from certain Arab State entity to another.

Originality/value

The paper provides a clear understanding of the guidelines for international commercial arbitration contract in the Middle East. Legal culture should be taken into consideration if a successful contract implementation has to be achieved.

Details

Journal of International Trade Law and Policy, vol. 9 no. 2
Type: Research Article
ISSN: 1477-0024

Keywords

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Article
Publication date: 3 October 2016

Emmanuel Ebikake

The purpose of this paper is to provide an assessment of soft law as a technique for repressive and preventive anti-money laundering control (hereinafter AMLC).

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1732

Abstract

Purpose

The purpose of this paper is to provide an assessment of soft law as a technique for repressive and preventive anti-money laundering control (hereinafter AMLC).

Design/methodology/approach

This article focuses heavily on understanding the nature of international anti-money laundering (AML) law-making process. The approach towards this question is interdisciplinary and looks at the treaty and non-treaty AML obligations through a prism of two theoretical lenses (legal positivism and liberal/legal process theory) to explain the role of soft law in the area.

Findings

Current international effort to combat money laundering (ML) is fragmented (as evident in the enormous variety of law-making processes), despite the role of soft law. Part of the problem is the divergent nature of domestic criminal legislation, which is reflected in the choice of predicate crime and a lack of procedural rule to identify and enforce the law at the state level. To address the limit of current efforts, the paper will propose a uniform codification of AML law directed by a more representative body or commission of experts offering means of restating, clarifying and revising the law authoritatively and systematically.

Research limitations/implications

The research is focused mainly on the theoretical issues relating to the subject of ML and less on any empirical case study.

Practical implications

The paper will focus on the role of soft law as a technique for repressive and preventive AMLC. Based on current analyses of the role of soft law as an alternative to hard law or as a complement to hard law (leading to greater cooperation), it attempts to outline the possible advantages and disadvantages that soft law could have in the context of AMLC. For example, the use of soft law promotes harmonisation of international AML standards through the Financial Action Task Force, while the role of the FATF remains unclear in international law. This is important for the purpose of responsibility, as the law on state responsibility clearly states when a State is responsible, in the event of a breach, and the consequence in international law.

Social implications

The implication of the paper is that it contributes to the on-going debate about the increasingly role of soft law-making in international law.

Originality/value

The research perspective to the study of ML is theoretical and focuses on the nature of the law.

Details

Journal of Money Laundering Control, vol. 19 no. 4
Type: Research Article
ISSN: 1368-5201

Keywords

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Article
Publication date: 20 July 2010

Marco Arnone and Leonardo Borlini

The purpose of this paper is to present an empirical assessment and outline issues in criminal regulation relating to international anti‐money laundering (AML) programs.

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3354

Abstract

Purpose

The purpose of this paper is to present an empirical assessment and outline issues in criminal regulation relating to international anti‐money laundering (AML) programs.

Design/methodology/approach

In the first part, this paper outlines the serious threats posed by transnational laundering operations in the context of economic globalization, and calls for highly co‐ordinated international responses to such a crime. The second part of the paper centres on elements of international criminal regulation of ML.

Findings

The focus is on the phenomenological aspect of ML and highlights that to a large extent it is an economic issue. Economic analysis calls for an accurate legal response, with typical trade‐offs: it should deter criminals from laundering by increasing the costs for such illicit operations, calling for enhanced regulatory and enforcement activities; however, stronger enforcement yields increased costs and reduces privacy. These features have lately inspired the recent paradigm shift from a rule‐based regulatory framework to a risk‐based approach which still represents an extremely delicate regulatory. Both at the international level and within the single domestic legal system, AML law is typically characterised by a multidisciplinary approach combining the repressive profile with preventive mechanisms: an empirical evaluation of the International Monetary Fund‐World Bank AML program is presented, where these two aspects are assessed. The non‐criminal measures recently implemented under the auspices of the main inter‐governmental public organisations with competence in these fields seem to be consistent with the insights of economic analysis. However, some key criminal issues need to be better addressed.

Originality/value

The paper offers insights into international AML programs, focusing on criminal regulation.

Details

Journal of Money Laundering Control, vol. 13 no. 3
Type: Research Article
ISSN: 1368-5201

Keywords

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Article
Publication date: 16 August 2011

Iván Székely, Máté Dániel Szabó and Beatrix Vissy

The purpose of the paper is to provide an overview of the legal implications which may be relevant to the ethical aspects of emerging technologies, to explore the existing…

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2109

Abstract

Purpose

The purpose of the paper is to provide an overview of the legal implications which may be relevant to the ethical aspects of emerging technologies, to explore the existing situation in the area of legal regulation at EU level, and to formulate recommendations for the lawmakers.

Design/methodology/approach

The analysis is based on the premise that the law is supposed to invoke moral principles. Speculative findings are formulated on the basis of analyzing specific emerging technologies; empirical findings are based on a research conducted in the whole legal corpus of the EU.

Findings

In the area of network‐based technologies the already existing and elaborated legal frameworks can be used in an extended manner; artificial intelligence‐based technologies call for alterations in several branches of law; while interface technologies show the difficulty and complexity of regulating interdisciplinary fields. The legal implications of emerging technologies have attracted only a minimal legislative attention in the competent bodies of the EU.

Originality/value

The paper provides a systemic approach towards transmitting ethical norms to the application of emerging technologies through legal regulation, and formulates detailed recommendations in various areas of such technologies.

Details

Journal of Information, Communication and Ethics in Society, vol. 9 no. 3
Type: Research Article
ISSN: 1477-996X

Keywords

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Article
Publication date: 11 September 2009

Mohammad Mahabubur Rahman, Mohammad Aktaruzzaman Khan, Nour Mohammad and Mohammad Osiur Rahman

The purpose of this paper is to focus on existing law, the legal system and jurisprudence circling round territorial concepts.

Abstract

Purpose

The purpose of this paper is to focus on existing law, the legal system and jurisprudence circling round territorial concepts.

Design/methodology/approach

This paper is an opinion piece based on current and recent analysis of legal principle.

Findings

After the emergence of the internet as well as cyberspace, human activities are not confined solely to the physical world. They have been extended to a very different and peculiar non‐physical world. This world is everywhere and at the same time it is nowhere; and necessarily it is difficult to prescribe rules and enforce the same regarding cyberspace for its everywhere and nowhere proposition. The elementary concept of jurisprudence e.g. title, ownership and possession, etc. cannot be considered in the way we usually understand in case of real world. However, cyberspace has to be controlled by a legal framework that involves new ideas, leading to a new challenge in existing legal philosophy exclusively based on territorial concept.

Originality/value

Traditional territorial jurisprudence has to be revised in the light of cyber necessities arising out of high technological development. Moreover, certain new institutions have to be established in order to apply new principles in dispute settlement of cyber matters. This paper both identifies the need and options for the future.

Details

International Journal of Law and Management, vol. 51 no. 5
Type: Research Article
ISSN: 1754-243X

Keywords

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Article
Publication date: 1 March 1999

Rose‐Marie B. Antoine

The principle of offshore financial confidentiality is a controversial issue in offshore law. On the one hand, offshore jurisdictions view confidentiality in financial…

Abstract

The principle of offshore financial confidentiality is a controversial issue in offshore law. On the one hand, offshore jurisdictions view confidentiality in financial matters as an essential ingredient in the offshore industry which deserves to be protected. On the other, onshore states are increasingly hostile to confidentiality and have been willing to take drastic measures to undermine it.

Details

Journal of Financial Crime, vol. 7 no. 1
Type: Research Article
ISSN: 1359-0790

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Book part
Publication date: 11 December 2006

Elisabeth Krecké and Carine Krecké

In recent years, traditional legal systems have been increasingly challenged by the rapid and wide-ranging changes induced by modern technology and science which…

Abstract

In recent years, traditional legal systems have been increasingly challenged by the rapid and wide-ranging changes induced by modern technology and science which constantly transform our economies and societies. The rise of a new type of scholarship in contemporary legal thought can be understood in the light of the growing disjunction between the traditional methods of law dealing with social problems and the overall pragmatic spirit of the globalized economies. The intrinsic conservatism of traditional law is sometimes (more or less explicitly) accused of being inadequate to cope with the problems raised by the application of new technologies and sciences, or worse, of being an impediment to the development of the full potential of the modern economies.

Details

Cognition and Economics
Type: Book
ISBN: 978-1-84950-465-2

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