• Journal of International Commercial Law and Technology

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  • Business Identity Theft under the UDRP and the ACPA: Is bad faith always bad for business advertising?

    Websites have provided a very strong platform for businesses to reach their customers. They surpass the regular billboards by providing portals through which transactions are conducted without any physical contacts between a seller and a buyer. This usefulness underscores the importance of domain names through which websites are navigated. Cybersquatters have in bad faith targeted or hijacked domain names of famous and reputable businesses exploiting the goodwill of these names and misleading customers and other internet users. This paper explores the construction of bad faith under both the Uniform Dispute Resolution Policy and the US Anticybersquatting Consumer Protection Act. The paper argues that, despite some inconsistencies, "bad faith" elements have been broadly interpreted to embrace various activities of cybersquatters. It cautions that an overzealous application of the instruments may stifle freedom of speech.

  • The brewing tug-of war between South Africa's Chapter 9 Institutions: The Public Protector vs the Independent Electoral Commission

    The release of the Public Protector’s final report on the allegations of maladministration against the chairperson of the Independent Electoral Commission has put under the microscope the development of the principles of the rule of law within the context of the powers and functions of these institutions in furthering the objectives of the new constitutional dispensation. It generated debates on whether these institutions are fulfilling their duty of promoting constitutional democracy or are at each other’s throats. These debates rests on the interrelationship that exist between the principle of accountability and the legitimate role that is played by the institutions themselves in ensuring the proper and effective strengthening of South Africa’s democracy. The debates also focus on the government’s commitment to the advancement of the rule of law in the regulation of state authority. Against this background, this paper examines the application of the principle of the rule of law within the framework of Chapter 9 institutions with particular reference to the Public Protector and the Independent Electoral Commission. Such undertaking is motivated by the recent release of the report as indicated above which reinforced the objective of having established the ‘anti-corruption and ethical institutions in bringing about good governance’ who subsequently became embroiled in a "cat-fight" over the legitimacy of their powers. The intention is not to analyse the constitutional status or history of these institutions but rather on the factors that have the potential to compromise their integrity and legitimacy in upholding the principles of the rule of law as foundational values of the new dispensation.

  • Thai and Australian Foreign Business Law and the Impact of the Thailand Australia FTA

    When Thailand and Australia entered into a Free Trade Agreement in 2005 the public focus was largely on the trade in goods and the benefits that would accrue to each country with a more open market. What appears to have been largely neglected is that the Thailand Australia Free Trade Agreement also covers trade in services, foreign direct investment including commercial enterprises, and the movement of persons. This paper describes the foreign business laws that operate in each jurisdiction. It will be seen that those of Thailand are much more restrictive of foreign entry than those of Australia. Thailand provided additional concessions to Australian companies allowing them to operate in selected sectors such as consulting services, communications and education. Australia in its response reiterated that Australia was already a largely open market and Thailand was welcome to establish businesses and invest in Australia subject to the limited restrictions that apply to all foreign investors. Both countries agreed to facilitate the movement of persons associated with businesses established in the country of the other party. It is clear that Australia was the major beneficiary from these initiatives. This needs to be balanced against the fact that Australia had granted Thailand major concessions in opening its market to tariff and duty free entry of most Thai goods

  • The Indonesian Trade Law of 2014: The Provision on the Annulment of International Trade Agreement

    On March 2014, the Government of the Republic Indonesia promulgated the Law No. 7 of 2014 on Trade. No law on trade has ever been promulgated before. One of the controversial provisions embodied in the Law is the provision on the status of international trade agreement in Indonesia. The Law, as embodied in Article 85, states that the government, with the approval of the parliament, may review and annul the international trade agreements which have been signed by Indonesia. This provision is controversial because, the international agreement, including the international trade agreement, is the product of the consensus of the states participating in it. With the promulgation of the Law and especially the provision of article 85, can the Law be effectively implemented in the future?

  • Some Legal Aspects Of Cloud Computing Contracts

    Cloud computing is a current reality in technology that is being widely adopted by large companies. This study discusses cloud computing and information security. It also includes some of the advantages and risks, models of system and service adopted, as well as key services offered by the providers of cloud computing. It also addresses the legal issues of cloud computing contracts, with a focus on the contracting parties, on their goal and main clauses that must be addressed in this atypical contract, among them the integrity and confidentiality of data plus information requirements for supplying information and the purpose of the content stored in the case of a breach of contract

  • Fighting counterfeiting: Importance of enforcement of intellectual property rights

    Counterfeiting has currently been labelled as the crime of the twenty-first century. It has evolved into a much more lucrative business in very sophisticated ways. While there are many contributing factors to the proliferation of counterfeiting in recent years, the only real area where the government can make a difference is in setting up a responsive legal system that includes good enforcement. The aim of this paper is to examine the scale of counterfeiting activity derived from the seizure data issued by the World Customs Organization, emphasizing on the worldwide scenario. This is followed by examination on the motivations behind counterfeiting activity to identify gap in the existing enforcement mechanisms so that recommendations can be made to improve the competency of those mechanisms to address counterfeiting. The paper then critically examines and relates the reasons of why effective enforcement is necessary in the fight against counterfeiting

  • A Cobweb of Exception to Copyright Law for Research Purposes

    Access to copyrighted materials and resources for research purposes have been increasingly conducted across borders. In certain circumstances, access to copyright materials that may be needed for research purposes may be restricted due to copyright law. International copyright conventions do provide exceptions to copyright law for research purposes as what has been generally covered under the ‘three step test’. However, this rule may be interpreted either narrowly or flexibly by member countries, which leads to different countries adapting different laws pertaining to it. This paper analyses the Malaysian copyright provision relating to copyright exceptions that may be used for research purposes and its recent amendments made in 2012 as compared to Australia and the United Kingdom provisions. This paper will discuss the implications of the recent amendment and further explains the future direction researchers could take to ensure the legality of their actions when using copyrighted materials for research purposes

  • Comparative Legal Study of Intangible Cultural Heritage in the UK and China

    In order to protect intangible cultural heritage (ICH), the United Kingdom (UK) and China have issued a series of laws in recent years. By comparing these two legal systems, this article analyses the merits and demerits of the two systems and explores a beneficial path to optimize the legal system of ICH in China

  • Digital content and the definition dilemma under the Sale of Goods Act 1979: Will the Consumer Rights Bill 2013 remedy the malady?

    The Sale of Goods Act 1979 (“SGA”) that is in force in the United Kingdom (UK) is ill suited for the Twenty First Century. Since the term “goods” defined in the SGA does not extend to the sale of digital content, buyers of digital content are robbed of the protection guaranteed by the implied terms found therein. This analysis considers the recent Consumer Rights Bill 2013 that was presented in Parliament by the UK’s Government and evaluates its suitability in overcoming the deficiencies in the SGA in relation to the sale of digital content

  • Data Mining and Data Matching: Regulatory and Ethical Considerations Relating to Privacy and Confidentiality in Medical Data

    The application of data mining techniques to health-related data is beneficial to medical research. However, the use of data mining or knowledge discovery in databases, and data matching and profiling techniques, raises ethical concerns relating to consent and undermines the confidentiality of medical data. Data mining and data matching requires active collaboration between the medical practitioner and the data miner. This article examines the ethical management of medical data including personal information and sensitive information in the healthcare sector. It offers some ethical and legal perspectives on privacy and the confidentiality of medical data. It examines the international landscape of health information privacy protection, relevant Australian legislation and recommendations to improve the ethical handling of medical data proposed by the Australian Law Reform Commission

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