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1 – 10 of over 3000Suherman S.H. and Heru Sugiyono
This research is very important to conduct to review government policy on Indonesian contract law that still uses contract law inherited from Dutch product (BW) and review which…
Abstract
Purpose
This research is very important to conduct to review government policy on Indonesian contract law that still uses contract law inherited from Dutch product (BW) and review which regulations are to be adapted to current development of contract law. This research’s novelty is that new rules will be found in Indonesian contract law.
Design/methodology/approach
This research used normative and empirical methods. Normative research is dogmatic research or one that analyzes legislation using secondary data consisting of primary, secondary and tertiary legal materials. Besides the normative method, the research was also conducted using empirical method through direct interview and observation in some government agencies, such as the Directorate General of Legislation, Ministry of Law and Human Rights (HAM) and Chairman of Legal Product Formation Division, House of People’s Representatives of the Republic of Indonesia and the Civil Law Teaching Association (APHK).
Findings
This research found that new Indonesian contract law is very important to give legal certainty and justice to the people, and the contract law must regulate important matters related to the sources of contract besides agreement and law, related to termination, unjust enrichment, negotiation, good faith, public contract and private contract and related to legal act and validity of electronic contract.
Research limitations/implications
The novelty of this research is that new rules will be found in Indonesian contract law. This research is different from previous researches conducted by Sigit Irianto (2013) and Deviana Yuanitasari (2020), that discuss only on contract law development related only to the good faith principle.
Practical implications
Drafting contract law is a relatively heavy duty due to the factor of law pluralism that contains contract aspect in Indonesia such as customary law aspect, Islamic law aspect, regional aspect, international aspect and other aspects. In fact, meanwhile, there is rapid development in the community with regard to business transactions that are also followed with contract law development. Therefore, amendment is needed for the Indonesian contract law to adapt to the people’s need for law, and this change agenda is also addressed to updating the contract law.
Social implications
Civil law reform, especially contract law, is deemed very important for Indonesia, because based on field fact, people do their business contract by applying contract law that is not yet regulated in the contract law in KUHPerdata; thus, new contract law is needed that regulates important matters related to sources other than agreement and law.
Originality/value
It is very important to conduct this research to review government policy in Indonesian contract law that still uses the contract law inherited from Dutch product (BW) and review what regulations should have been adjusted to current development of contract law. The novelty of this research is that new rules will be found in Indonesian contract law. This research is different from previous researches conducted by Sigit Irianto (2013) and Deviana Yuanitasari (2020), that discuss only on contract law development related only to the good faith principle.
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Research into the interpretability and explainability of data analytics and artificial intelligence (AI) systems is on the rise. However, most recent studies either solely promote…
Abstract
Purpose
Research into the interpretability and explainability of data analytics and artificial intelligence (AI) systems is on the rise. However, most recent studies either solely promote the benefits of explainability or criticize it due to its counterproductive effects. This study addresses this polarized space and aims to identify opposing effects of the explainability of AI and the tensions between them and propose how to manage this tension to optimize AI system performance and trustworthiness.
Design/methodology/approach
The author systematically reviews the literature and synthesizes it using a contingency theory lens to develop a framework for managing the opposing effects of AI explainability.
Findings
The author finds five opposing effects of explainability: comprehensibility, conduct, confidentiality, completeness and confidence in AI (5Cs). The author also proposes six perspectives on managing the tensions between the 5Cs: pragmatism in explanation, contextualization of the explanation, cohabitation of human agency and AI agency, metrics and standardization, regulatory and ethical principles, and other emerging solutions (i.e. AI enveloping, blockchain and AI fuzzy systems).
Research limitations/implications
As in other systematic literature review studies, the results are limited by the content of the selected papers.
Practical implications
The findings show how AI owners and developers can manage tensions between profitability, prediction accuracy and system performance via visibility, accountability and maintaining the “social goodness” of AI. The results guide practitioners in developing metrics and standards for AI explainability, with the context of AI operation as the focus.
Originality/value
This study addresses polarized beliefs amongst scholars and practitioners about the benefits of AI explainability versus its counterproductive effects. It poses that there is no single best way to maximize AI explainability. Instead, the co-existence of enabling and constraining effects must be managed.
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The purpose of this paper is to supply basic insights into the principle of shūrā (consultation) in Islamic banking, the idea of a centralised approach to the corporate governance…
Abstract
Purpose
The purpose of this paper is to supply basic insights into the principle of shūrā (consultation) in Islamic banking, the idea of a centralised approach to the corporate governance of Islamic financial institutions (IFIs), the roles of a centralised Sharīʿah board as the highest authority on Sharīʿah issues and its distinguishing features from a de-centralised system and the advantages and disadvantages of the two governance systems.
Design/methodology/approach
In analyzing these, the paper adopts the critical legal studies approach and refers to the provisions of the Qurʾan and Sunnah, ijmāʿ (consensus) of Sharīʿah scholars and recent Islamic banking reports.
Findings
Despite the fact that the double-digit growth of the current US$2tn Islamic banking industry is a promising sign for its further expansion – expecting to cross the US$6.5tn mark by 2020 – there remains concern over the lack of standardization or rather the diversified approaches to the corporate governance of IFIs across key Islamic banking regions.
Practical implications
There has been much debate surrounding the issue of whether the Islamic banking industry requires a centralised Sharīʿah board at the state level to complement the Sharīʿah boards at the IFIs’ individual level in providing better supervision of the Sharīʿah-compliance of IFIs. The fact that the industry is already equipped with two prominent standard-setting agencies in the form of the AAOIFI, the IFSB does little to suggest that best governance practices – which centre around the themes of consistency, harmony and uniformity – are on the horizon, at least not whilst their issued standards and guidelines remain voluntary for IFIs.
Originality/value
All in all, it is aspired that this paper may assist the reader in evaluating the pros and cons of the whole concept of Sharīʿah board centralisation.
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Over a decade since the Special Criminal Court (SCC) was established in Cameroon, hundreds of individuals have been indicted, tried and convicted. Sentences have been imposed…
Abstract
Purpose
Over a decade since the Special Criminal Court (SCC) was established in Cameroon, hundreds of individuals have been indicted, tried and convicted. Sentences have been imposed, most of which include a term of imprisonment (principal punishment/penalty) and confiscation as accessory penalty or punishment. Research focus has not been directed at the sentences which, as argued in this paper, are inconsistent, incommensurate with the amounts of money stolen and a significant departure from the Penal Code. This paper aims to explore the aspect of sentencing by the SCC.
Design/methodology/approach
To identify, highlight and discuss the issue of sentencing, the paper looks at a blend of primary and secondary materials: primary materials here include but not limited to the judgements of the SCC and other courts in Cameroon and the Penal Code. Secondary materials shall include the works of scholars in the fields of criminal law, criminal justice and penal reform.
Findings
A few findings were made: first, the judges are inconsistent in the manner in which they determine the appropriate sentence. Second, in making that determination, the judges would have been oblivious to the prescripts in the Penal Code, which provides the term of imprisonment, and in the event of a mitigating circumstance, the prescribed minimum to be applied. Yet, the default imposition of an aggravating circumstance (being a civil servant) was not explored by the SCC. Finally, whether the sentences imposed are commensurate with the amounts of monies stolen.
Research limitations/implications
This research unravels key insights into the functioning of the SCC. It advances the knowledge thereon and adds to the literature on corruption in Cameroon.
Practical implications
The prosecution and judges at the SCC should deepen their knowledge of Cameroonian criminal law, especially on the nature of liberty given to judges to determine within the prescribed range of the sentence to be imposed but also consider the existence of an aggravating factor – civil servant. They must also consider whether the sentences imposed befit the crime for which they are convicted.
Originality/value
The paper is an original contribution with new insights on the manner in which sentencing should be approached by the SCC.
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As a typical nature-based solution to climate change, forestry carbon sinks are vital to achieving carbon neutrality in China. However, regulations in China are insufficient to…
Abstract
Purpose
As a typical nature-based solution to climate change, forestry carbon sinks are vital to achieving carbon neutrality in China. However, regulations in China are insufficient to promote the development of carbon offset projects in forestry. This study aims to identify the regulatory obstacles impeding the development of forestry offsets under China’s certified emission reduction (CCER) and explore ways to improve the regulatory system.
Design/methodology/approach
This study conducts a qualitative analysis using a normative legal research method. This study conducted a synthetic review of national and local regulatory documents to gain insights into the regulatory landscape of forestry offsets in China. The main contents and characteristics of these documents are illustrated. Furthermore, related secondary literature was reviewed to gain further insight into forestry offset regulations and to identify significant gaps in China’s CCER regulation.
Findings
Forestry offset regulations under the CCER are characterized by fragmentation and a relatively lower legally binding force. There is no systematic institutional arrangement for forestry offset development, impeding market expectations and increasing transaction costs. The main challenges in China’s regulation of forestry carbon sinks include entitlement ambiguity, complicated rules for registration and verification, a lack of mechanisms for incentives, risk prevention and biodiversity protection.
Originality/value
Forestry carbon sinks’ multiple environmental and social values necessitate their effective development and utilization. This study assessed forestry offset regulations in China and proposed corresponding institutional arrangements to improve forestry carbon sink regulations under the CCER.
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The aim of the present study is to shed light on the role of legal practitioners, namely, lawyers and notaries, in the fight against money laundering: Are they considered as…
Abstract
Purpose
The aim of the present study is to shed light on the role of legal practitioners, namely, lawyers and notaries, in the fight against money laundering: Are they considered as facilitators or obstacles against money laundering? How does the global and the EU legal framework deal with the legal professionals?
Design/methodology/approach
The research follows a deductive approach attempting to respond to questions such as: How do the lawyers’ and notaries’ societies react in front of the anti-money laundering measures that concern them and why? What are the discrepancies between the lawyers’ professional secrecy and the obligations that EU anti-money laundering legislation assigns them?
Findings
This study disclosures the response of the European union and international legal and regulatory framework as well as the reflexes of the international and European legal professionals’ associations to this danger. It also demonstrates the reaction of lawyers against European union anti-money laundering legislation, to the point that it limits not only the confidentiality principle but also the position of the European judicial systems to the contradiction between this principle and the lawyers’ obligation to report their suspicions to the authorities.
Research limitations/implications
To fulfil the study goals, it was necessary to overcome some obstacles, like the limitation of existing sources. Indeed, transnational empirical research considering the professionals who facilitate money laundering is narrow. Besides, policymakers and academics only recently expressed more interest in money laundering and its facilitators.
Originality/value
This paper fulfils an identified need to study the legal professionals’ role not only in money laundering practices but also in anti-money laundering policies.
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This paper aims to investigate and provide pathways for leveraging the Organisation for Economic Cooperation and Development (OECD’s) Ten Global Principles (TGPs) for countering…
Abstract
Purpose
This paper aims to investigate and provide pathways for leveraging the Organisation for Economic Cooperation and Development (OECD’s) Ten Global Principles (TGPs) for countering tax crimes in the EU.
Design/methodology/approach
The study is guided by the combination of traditional and innovative research methods drawn from criminal law and justice, public regulatory theory and tax law, based on socio-legal and comparative methodologies.
Findings
The research shows that EU has achieved considerable amount of progress when it comes to meeting the TGPs. However, law and practice in EU Member States indicate that there are different legal, human and organisational approaches to fighting tax crimes. The TGPs could be strategically applied to complementing the EU’s Fifth Anti-Money Laundering Directive (AMLD) and other initiatives on Administrative Cooperation.
Research limitations/implications
Although the TGPs appear encompassing, there are opportunities to harness the potency of these principles and to provide more tailored principles that can help engineer sustainable remedies for countering tax crimes in the EU.
Practical implications
The paper critically analyses, through a multidisciplinary approach, the main legal, human and organisational factors influencing the prosecution of tax crimes in the EU Member States.
Social implications
Realignment and harmonisation of tax enforcement paractices in the EU Member States thus help in the reduction of tax gap resulting from tax offences.
Originality/value
The paper provides novel approaches and findings based on empirical info obtained from face-to-face focus groups with end users and law enforcement agencies in tax enforcement eco-system in ten different EU Member States.
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This study aims to systematise the methodology used in comparative urban planning law and propose primary contexts for comparison in planning law.
Abstract
Purpose
This study aims to systematise the methodology used in comparative urban planning law and propose primary contexts for comparison in planning law.
Design/methodology/approach
This study undertook a review of comparative law methodology discourse and sought to establish connections between the discourse and the field of planning law.
Findings
This study argues for establishment of a realistic goal for comparative planning law by focusing on the planning law's modifiability. The goal of comparison in planning law should not be to find universally desirable principles or better solutions. Rather, the goal should be to identify a motive for devising a solution. This is because it is not only difficult to establish legal values that are universally applicable to planning law but also inappropriate to determine superiority of planning laws that have been developed over time by each jurisdiction’s sovereignty and policies on land use. When determining comparable systems for analysis among legal systems that are functionally equivalent, it is important to consider the context of land use relations alongside the comparative analysis to be done. To set realistic goals, the context should not be extended indefinitely but be systematised. Based on the foundational relationship underlying planning law, including the tension between planning authorities and property owners, this study presents five specific contexts for comparative analysis: “Strength of Property Rights,” “Level of Judicial Intervention,” “Plan- or Development-led System,” “Allocation of Planning Power” and “Level of Participation.” Examination of these contexts will allow better understanding of the similarities and differences among different systems and practical application of the results of comparative studies.
Originality/value
This study presents a novel approach to systematising the methodology and framework of comparative planning law.
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Muhammad Saleem Korejo, Ramalinggam Rajamanickam and Muhamad Helmi Md. Said
This paper aims to focus on the concept of money laundering and explores the evolution and expansion of criminalization of predicate offences to the money laundering within the…
Abstract
Purpose
This paper aims to focus on the concept of money laundering and explores the evolution and expansion of criminalization of predicate offences to the money laundering within the international anti-money laundering (AML) regime over the time. It proposes how to limit the size and scope of predicate offences in designing a balanced legal definition.
Design/methodology/approach
This paper opted a content analysis focussed on the criminalization aspect of offences to money laundering in the international AML regime under the United Nations Conventions (Vienna, Palermo and Corruption Convention) and Financial Action Task Force Standards.
Findings
This paper provides how the criminalization of money laundering has evolved and its definition expanded over the time. The international definition is widely drafted with wide range of predicate offences from proceeds of drug money to corruption, including terrorist financing and terrorist acts; however, the two phenomena – money laundering and terrorist financing are quiet distinct apart. This continual expansion of predicate offences quite leads legality issues such as over-criminalization and conflict with principles of criminal law. This paper suggests an approach to limit the size and scope of predicate offences to money laundering.
Practical implications
This paper includes implications for the development of a balanced approach in defining predicate offences through a qualitative limitation approach consistent with the minimalist theory of penalization of criminal law.
Originality/value
This paper attains an identified issue how the legal definition of the money laundering offence can be improved while considering rule of law and principles of criminal law concerns.
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