Journal of International Commercial Law and Technology

Latest documents

  • 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

  • 'Where Does a Wise Man Hide a Leaf?': Modernising the Laws of Disclosure in the Information Age

    Litigation practice has been significantly altered by the advent of electronically stored information in daily corporate life. It is argued that the laws of disclosure should be updated to recognise that technology-assisted document review via keyword searching is crucial in ensuring that the costs of litigation are well managed. In order to facilitate keyword searching, a new legal concept of accuracy in the selection of keywords should be introduced into the laws of disclosure. At the same time, despite the adversarial nature of litigation, it is imperative that parties approach electronic disclosure with a spirit of collaboration in order to achieve collective savings of time and resources

  • Fine-Tuning Vietnam's Electronic Transactions Law To Promote Growth in E-Commerce

    In the digital age, the E-signature has replaced the handwritten signature. Since 1995, there have been three generations of E-signature law: the first mandated use of the digital signature, the second recognized the legal validity of all types of E-signatures, and the third recognizes all types of E-signatures, but gives preferred status to the digital signature. Vietnam’s Electronic Transactions Law (“ETL”), enacted in 2005, is thirdgeneration; it recognizes all types of E-signatures, but favors use of the digital signature. Accreditation requirements are specified for Certification Authorities (“CA”), the issuers of certificates and verifiers to third parties that a digital signature is that of a specific subscriber. The CA is responsible for maintaining the security of information that it receives from its subscribers. The CA must inform the subscriber of any limitations on the use of the certificate. If an accredited CA issues a qualified certificate, it must meet more stringent security requirements which can only be achieved with a digital signature. CA’s must maintain a publicly-accessible repository of certificates and the public keys which relying third parties can use to decrypt a subscriber’s message. A CA may incur legal liability for publishing a certificate with inaccurate information or for not issuing a private key to the subscriber corresponding to the public key in the repository. The ETL allows certificates issued by CA’s in foreign countries to be recognized if they provide sufficient security. The author recommends that the following provisions be added to the ETL: (1) consumer protections for E-commerce participants; (2) several new computer crimes; (3) information technology courts; (4) mandatory E-government; (5) explicit long-arm jurisdiction; and (6) recognition of legal validity of electronic wills

  • Variability of fair and equitable treatment standard according to the level of development, governance capacity and resources of host countries

    The article provides a thorough examination of the fair and equitable treatment standard by considering what constitutes an act to be regarded as fair and equitable treatment of an investor and his investment, what are the criteria in establishing that there have been a breach of the fair and equitable standard in line with the interpretation in treaties, Bilateral Investment Treaties (BITs), decision of Tribunals etc. And finally should the criteria used vary based on the level of development, governance capacity and resources in the host State

  • Private Law and State Paternalism: Too Much Legal Regulation of Private Life?

    This article analyses the adverse effect of paternalistic attitudes adopted by the State, especially the legal regulation of private life. Often, the State has adopted certain positions, especially through the issuance of rules and legal decisions in areas where Private Law and freedom of choice has prevailed, such as private contracts. Due to a protectionist position adopted by the State, legal regulation of private life has increased. The Judiciary resolves questions that arise daily in private orbit precisely because it is considered as the only social actor able to implement its own decisions. In such a way, this study seeks to analyze the possible consequences of this state altruistic posture. It is interesting to note that such a posture is authoritative at the same time, since individuals are considered eternally vulnerable and minimizes principles of Private Law. This, ultimately, could lead from a democratic system to an authoritarian one

  • 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

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