International Journal of Private Law (7 papers in press)
FOREIGN MINING INVESTMENT REGIME IN INDONESIA: REGULATORY RISK UNDER THE REVIVAL OF RESOURCE NATIONALISM POLICY
by Fifi Junita
Abstract: The resource nationalism policy over natural resources is the existing policy affecting resource rich states nowadays. This policy has greatly affected mining regulation and foreign mining investment in developing states. Indonesia as one of the resource rich states is not sterile from the influence of resource nationalism policy by basing this policy on the Article 33 of the 1945 Constitution (fourth amendments). The revival of resource nationalism policy has substantial impact upon the foreign investment regulatory regime in Indonesia. There has been a tendency that new mining law and its implementing regulation have shifted to the adoption of the resource nationalism policy. This study will firstly analyse the extent to which the policy of resource nationalism has affected mining regulatory regime in Indonesia. This study also demonstrates that the resource nationalism policy has resulted in the increase of state control over mining resources and the limitation of foreign ownership over natural resources in mining industry. The adoption of resource nationalism policy which is coupled with the lack of regulatory governance has increased regulatory risk in foreign mining investment in Indonesia. Accordingly, this will also have a significant implication on the Bilateral Investment Treaty (BIT) that has been established between Indonesia and other jurisdictions globally. Therefore, this study proposes policy recommendations for resolving this issue.rn rn
Keywords: Keywords: regulatory risk; mining investment; mining regulation; Investment Treaty; resource nationalism.
Challenges of Organ Transplantation in Nigeria.
by Olaitan Olusegun
Abstract: Life is sacred and as such, all human beings crave to utilize all available means to sustain living. This is one desire that is pitched against the reality of human life which is attached to the health conditions of human organs. Organ transplantation therefore, is a potential solution to achieve replacement of damaged human organs. However, this opportunity is not fully available in Nigeria due to the several constraints and challenges involved in such transplants. This paper therefore examines the challenges affecting Nigerians who wish to have a better chance of a quality healthy life with new organs. It found that the challenges of organ transplantation such as the need for regulation, lack of public awareness, high cost of transplantation and inadequate facilities in hospitals are all factors that hinder an efficient process of organ transplantation. These factors thus need to be resolved in order to make progress.
Keywords: organ transplantation; organs; health care; hospitals; challenges; Nigeria; transplantation; health; life; inadequate facilities.
Is Summary Trial of Copyright Crimes consistent with Right to Fair Hearing?
by Nkem Itanyi, Sylvester Ndubuisi Anya
Abstract: Copyright is listed in the exclusive legislative list in the Constitution of the Federal Republic of Nigeria (CFRN) 1999 as amended. Accordingly, relevant statutes vest original jurisdiction over copyright matters in the Federal High Court.The Federal High Court Act provides that the Federal High Court should adopt summary trial in all criminal proceedings before it.Thus, persons accused of criminal infringement of copyright are tried summarily in this court. Meanwhile, the CFRN 1999 as amended section 36(6)(a) and (b) guarantees for all persons charged with crime the right to prompt and detailed information on the nature of the offence against them and the right to be given adequate time and facility for the preparation of their defence. This paper contends that summary trial of persons accused of copyright crimes at the Federal High Court is inconsistent with these constitutionally guaranteed rights to fair hearing. The paper recommends amendments to the law that enable the trial of copyright offences to be by information.
Keywords: Copyright Crime; Summary Trial; Proof of Evidence; Court; Right to Fair Hearing; Copyright Act.
The South African action for adultery common law, customary law,
and constitutional perspectives
by Amanda Barratt
Abstract: South Africas highest courts recently abolished the common law action for adultery. In 2014, the Supreme Court of Appeal abolished the action on the ground that the conduct did not satisfy the wrongfulness requirement for delictual liability In 2015, the Constitutional Court confirmed abolition of the adultery remedy on constitutional grounds. These judgments did not consider the customary law adultery actions. South Africas customary law systems will retain their adultery remedies unless these actions are also abolished. The Supreme Court of Appeals reasoning might not be applicable to the customary law actions. It is also not certain that the Constitutional Courts reasoning will necessarily have the outcome that customary law actions for adultery must be abolished on constitutional grounds. It might be possible to argue that the sexual delicts in customary law are integrally linked to traditional customary marriage and thus protected by the constitutional right to culture. However, this argument appears weak in the context of the adultery remedy, as that remedy is not linked to core features of traditional culture. Thus the customary law action for adultery should also be abolished on constitutional grounds.
Keywords: adultery; delict; common law; customary law; living customary law; legal history; Constitution of South Africa; right to culture; South Africa; private law.
The case for specific performance as remedy for breach of athletes' contracts.
by Kenneth Mould, Steve Cornelius
Abstract: The purpose of this article is to suggest to South African courts that specific performance is the most adequate remedy for breach of athletes contracts. The current viewpoint of South African courts as to whether specific performance is in fact the most adequate remedy for breach of athletes contracts, will be compared with that of courts within the federal government system of the United States of America. The reason for choosing this jurisdiction is twofold: firstly, the US has a particularly rich history of disputes involving repudiation of athletes contracts and which remedies courts preferred for this type of breach, and secondly, a number of reputable scholars of US sports law have suggested that US courts should consider ordering affirmative injunctions against repudiating athletes - despite the Lumley rule which is considered the primary indicator of the most adequate remedy for breach of athletes contracts in US law.
Keywords: Athletes’ contracts; Professional sport; Specific performance; Injunction; Sui generis; Contractual remedies; Lumley rule; South Africa; United States of America; Sports contract.
The Efforts of Inheritance Dispute Resolution for Customary Land on Indigenous Peoples in Karo, North Sumatra, Indonesia
by Maria Kaban, Runtung Sitepu
Abstract: Pluralism of inheritance law in Indonesia proves that there has been no unification of inheritance law in Indonesia; instead, customary law on inheritance, Islamic law on inheritance and European Civil Code (ECC) law on inheritance have continued up until now. As land is one of the objects in the inheritance, it is highly likely that the conflict over customary lands, unless followed-up, would lead to disputes. Such conflict over the inheritance of customary lands is the leading factor of customary land disputes. The Karonese people living in the district of Karo have a variety of ways to resolve the inheritance disputes over their customary lands, such as through perumah begu, runggun, and District Court. In common practice, Karonese people prefer to resolve their disputes based on the local customary law rather than to proceed the disputes to the Distric Court.
Keywords: inheritance disputes; customary lands; customary law.
Electronic Contracts and Torts in the UK and the UAE Private International Law
by Abdullah Nawafleh
Abstract: This paper explores the current legislation on private international law in the United Kingdom (UK) and the United Arab Emirates (UAE) in relation to electronic contracts and torts. It highlights issues responsible for deepening the uncertainty and confusion surrounding contracts and torts performed by electronic means - issues that remain unaddressed in UAE legislation. In particular, the paper addresses the absence of adequate provision for choice of law and jurisdiction in the environment of electronic consumer contract and torts. The UAE could address these issues by learning from the experience of the UK when making reforms and instigating future legislation. The paper concludes that, with regard to electronic consumer contracts, the UK provides superior legislation to that of the UAE.
Keywords: private international law; choice-of-law; electronic contracts; tort law; consumer law; jurisdiction; conflict of laws.