Global economic crime – acting resolutely, thinking laterally

The author considers the influence of international law and its institution on measures to counter international economic crime and corruption, with particular reference to the situation in Cambodia following the Paris Peace Accords of 1991 and the work of the World Bank and OECD. Article by the Honourable Justice Michael Kirby AC CMG (Justice of the High Court of Australia) adapted from a speech presented at the 18th Cambridge International Symposium on Economic Crime, held at Jesus College, Cambridge from 10-17 September 2000. Published in Amicus Curiae - Journal of the Institute of Advanced Legal Studies and its Society for Advanced Legal Studies. The Journal is produced by the Society for Advanced Legal Studies at the Institute of Advanced Legal Studies, University of London

The Fundamental Problem Of Regulating Technology

Scientific breakthroughs and the ceaseless pace of technological innovation touch a diverse range of subject matter, with the most profound changes often proving to be the most controversial. Recent decades have seen the fields of biotechnology and information technology raise the most attention, with the deliberations of lawmakers and courts being increasingly focused on issues brought up by innovation within these fields. Though seemingly disparate and autonomous, given the wide range of issues brought up by the different facets of contemporary technological innovation, the author in this special comment presents how one can take an overview of the subject of regulating technology vis-à-vis the law. Drawing inferences from his experiences with such issues during a law reform and judicial career spanning several decades, the author argues that there are interconnected paradoxes, and also general lessons, that regulators, particularly judges filling in for gaps left over by the legislature, must keep in mind when dealing with the subject of regulating technology

India and Australia: A Neglected Legal Relationship and a Plan of Action

The neglect by Indian and Australian lawyers of each other is as tragic as it is puzzling. It is tragic because it represents a lost opportunity for two common law countries, which are federations, which live by the rule of law, which are governed under democratic, parliamentary constitutions and which, in their different ways, protect fundamental human rights and basic freedoms. Australia, like India has a most creative and professional law reform system. Most law reform in Australia is achieved through the political process, i.e. through the initiatives of government and the public service. Two countries sharing so many historical, linguistic, constitutional and legal links, such as Australia and India, should have more connection than they hav

Maritime Insurance - Is the Doctrine of Utmost Faith Out of Date?

Like many other aspects of Australian law, both common and statute law, what may be described as Australian marine insurance law owes its origin to the law of England. Indeed, the High Court of Australia recently commented, in a rather different context, that Australian law is not only the historical successor of, but is an organic development from, the law of England. The judicial method in common law countries is assisted by concepts such as the doctrine of utmost good faith. Only when the courts are armed with such concepts can they fairly resolve the particular circumstances of the many and varied cases corning before them, doing so in a just and fair manner. Inflexible formulae and precise rules, whilst they may achieve certainty in the marketplace, lend themselves to injustices; the applicable doctrine having no inherent flexibility to deal with the nuances of differing fact situations. The nature of the insurance contract having remained basically the same through the ages, perpetuating the need for substantial disclosure, it cannot be properly said that the doctrine of utmost good faith is out of date. However, the contemporary manifestation of this doctrine in the context of marine insurance is, in the author’s view, in need of further substantive reform

Serious cartel conduct, criminalisation and evidentiary standards: Lessons from the Coal Vend case of 1911 in Australia

The criminalisation of anti-competitive behaviour such as price fixing has long been a feature of US antitrust law. Some European countries have introduced criminal penalties for price fixing while in others the matter is under debate. Australia introduced such laws in 2009. Of critical importance when considering criminalisation is the evidentiary standard expected in criminal prosecutions. A century ago, in the Coal Vend case, the High Court of Australia broke new evidentiary ground in applying forensic accounting and economic methods to examine price fixing. Subsequently overturned, much could still be learnt by policy makers and competition agencies from this case.competition, cartels, price fixing, intent, public interest,