THE UNREASONABLENESS OF REASONABLE: RETHINKING THE REASONABLE INVESTOR STANDARD

-This Note explores the reasonable investor standard in light of recent developments in pandemic-era securities litigation. Scholars have long criticized the reasonable investor standard for determining materiality. Given the dramatic backdrop of the COVID-19 pandemic, the limitations of the standard are becoming ever more evident. This Note provides a brief history of the development of the current standard and highlights some of its problems through two recent COVID-19 securities fraud cases. This Note argues that the reasonable investor standard is no longer sufficient to protect investors. Through examining tort law and First Amendment jurisprudence, this Note differentiates between the reasonable and average persons and recommends replacing the reasonable investor standard with the average investor standard.

A PROPHYLACTIC APPROACH TO COMPACT CONSTITUTIONALITY

From COVID-19 to climate change, immigration to health insurance, firearms control to electoral reform: state politicians have sought to address all these hot-button issues by joining forces with other states. The U.S. Constitution, however, forbids states to "enter into any Agreement or Compact" with each other "without the Consent of Congress," a requirement that proponents of much interstate action, especially around controversial topics, would hope to circumvent. The Supreme Court lets them do just that. By interpreting "any Agreement or Compact" so narrowly that it is difficult to see what besides otherwise unlawful coordination qualifies, the Court has essentially read the Compact Clause out of existence. Scholars have offered substitute standards. But those efforts serve to corroborate the analytical point on which current caselaw rests: that the infinite variety of ways in which states can collaborate makes separating constitutionally suspect from safe agreements impossible. This Article presents a prophylactic path forward focused not on what "any Agreement or Compact" means, but on how "the Consent of Congress" works. It argues that Congress should encourage possible-compact reporting by establishing a system where submission plus silence can equal consent. This approach is prophylactic because it avoids difficult constitutional questions by preventing debatable constitutional violations. And it does so while preserving much of the state-favoring functionality of the current system. The Article contends that this approach makes theoretical sense given situations supporting regulatory safe harbors and juridical and political sense given court and congressional precedent. It also argues that the proposed approach facilitates balancing the efficiency, democracy, and community values underlying regional-governance mechanisms better than the current system does.

QUESTIONING DEFENDANTS VIA SKYPE DURING THE STATE OF EMERGENCY IN THE REPUBLIC OF SERBIA

The state of emergency was declared in the Republic of Serbia on 15 March 2020, due to the COVID-19 pandemic, which lasted until 6 May 2020. During the state of emergency, certain human rights were restricted and suspended, which are otherwise protected and guaranteed by the Constitution. One of the measures introduced by the state was the possibility for the defendant to attend the main hearing via Skype. The basic question arises whether the right to a fair trial is violated in this way, since it is one of the rights that cannot be limited or suspended even during a state of emergency. In this regard, this paper addresses the national legal framework under which trials are permitted and conducted via Skype during a state of emergency and relevant case law of the European Court of Human Rights.

THE PEOPLES OF THE STATES UNDER THE AUSTRALIAN CONSTITUTION

The political and legal reactions by governments to the challenges of COVID-19 have brought into sharp relief the way in which Australian federalism operates. State borders and state affiliations have become the bases for restrictions and privileges in a way that harks back to the significance of colonial borders prior to the enactment of the Constitution. It is thus timely to explore the constitutional category and status of the 'people of a State'. In this article the constitutional definition of the peoples of the states is addressed to demonstrate they are territorially bounded and mutually exclusive but fungible communities. The peoples of the states are shown to be the privileged constitutional 'people' because of their protected role as electors under the Constitution. Lastly, the dual federal-national nature of the constitutional people is discussed.

RESTRICTION OF RELIGIOUS FREEDOM DURING THE FIRST PERIOD OF THE COVID-19 PANDEMIC IN THE LIGHT OF U.S. CASE LAW

The article presents a critical analysis of the U.S. federal court rulings regarding restrictions on freedom of religion during the COVID-19 pandemic. The subject of judicial control were the executive orders prohibiting public religious gatherings or limiting the number of participants. The author shares the view of the part of the courts which assumed that the laws introducing stricter restric-tions for churches and religious assemblies than for other comparable places and secular gatherings, in order to be constitutional, need to simultaneously pursue the compelling interest of the state and constitute proportional measures. While the protection of public health is a compelling interest of the government, the total prohibition of in-person church services or limiting religious gatherings to only a few people seem to violate the criterion of the least restrictive measure. When deciding what forms of social activity and businesses to exclude from the ban on public gatherings, the authorities cannot discriminatively assume that religious services are something secondary and not very urgent, especially if the same authorities consider the operation of e.g. liquor stores or shopping malls as “essential” or “life sustaining”. © 2020, John Paul II Catholic University of Lublin. All rights reserved.

CONTRACTUAL IMPLICATIONS RELATED TO THE CONSTRUCTION INDUSTRY IN PANDEMIC SITUATIONS: A REVIEW OF CASE LAWS

COVID-19 catastrophe has created various complications related to the construction industry. Conflicts arise between parties to the contract and among the majority of stakeholders. A successful contractual implication can manage the contractual challenges arising within construction job sites. The most common contractual provisions for the situation are Force Majeure and Changes in Legislation clauses in standard conditions of contracts. Sufficiency of the available remedies under the provisions applicable to COVID-19 or any other pandemics is a current talking point in the construction industry. Following questions are addressed to manage these unprecedented situation-related contractual conflicts: ‘what are the contractual challenges faced by the construction industry?’, ‘what are the most applicable contractual provisions to a pandemic situation?’, ‘what are the pandemic-related guidelines applicable to the construction industry?’, and ‘what are the available legal cases to use in a pandemic situation?’ The questions were discussed by carefully analysing existing literature referring to Case Laws. Future researchers are encouraged to suggest appropriate strategies for contractual challenges to facilitate the construction stakeholders to prepare them for future pandemics. © 2022, Ceylon Institute of Builders. All rights reserved.

Equal opportunity: will children over 12 be allowed to give their own consent to COVID-19 vaccination?

AimsThe law simultaneously upholds the liberties afforded to and the responsibilities required of the citizens within its jurisdiction. Many such liberties are acquiesced upon turning eighteen, the boundary before which an individual is considered a minor, and after, an adult. For many trivial liberties – drinking, gambling, smoking – the boundary is largely undisputed, frivolous in fact. But in matters grossly more important, like the right to autonomy over one’s own body and to make one’s own health choices, the boundary becomes anything but frivolous.In September 2021 the UK Chief Medical Officers recommended all children 12-15 years old be offered the Pfizer-BioNTech vaccine against SARS-CoV-2 (covid-19). Previous controversies regarding children’s consenting rights in UK Law have consequently been thrown to the fore. Such rights for children in the 12-15 age group are encapsulated through the common law, the judicial interpretation and application of which has previously been labelled too paternalistic, contributing nothing towards fostering children’s rights of participation in healthcare. In the light of the covid-19 pandemic, the debates surrounding how far children should be allowed, encouraged and supported by the medical profession and, ultimately, the Courts to make autonomous consenting decisions regarding medical treatment – without the need for parental corroboration - have been reignited.The objective of this paper is to critically evaluate whether the current law is too paternalistic and to speculate how the law might, and should, respond to consenting issues arising from the new covid-19 vaccination policy for children.MethodsIt achieves this by undertaking a systematic review of the statute and case law within the realm of consent to medical treatment – most pertinently, Gillick - and a comprehensive critical analysis of the current literature. Examples of seemingly excessive paternalism within UK case law are scrutinised against the accusation that they are overly controlling and offer nothing in the way of support for children’s participation. An analysis of the consenting situation regarding the covid-19 vaccination policy for children and its growing commentary follows, before speculations regarding how the law might approach such controversies based on previous precedent can be made.ResultsThrough this structure, the paper finds that the law has never intended to confer an unwavering adolescent right to autonomy but rather offers greater protection of their confidentiality, and that the boundaries constructed by the Courts safeguard against preservation of childhood autonomy at the expense of basic or developmental interests. It does acknowledge that the Court has, in cases, weakened its own precedent by undermining the concept of competence, and offers resolution by suggesting that the law ceases to consider autonomy as an all-or-nothing concept and instead encourages participation – not authoritative self-determination – consistent not only with a child’s chronological age but also their maturity, experience, and emotional intelligence.ConclusionWhere covid-19 vaccination is concerned, the test of Gillick competence must be applied. Healthcare professionals must be confident in assessing this competence and the law should empower them to respect and encourage children’s decision making through informed conversations, free from pressure or judgement.

European Constitutional Courts Towards Data Retention Laws, edited by Marek Zubik, Jan Podkowik, and Robert Rybski, [ Springer, Switzerland, 2021, 384pp, ISBN: 978-3-030-57188-7, £109.99 (h/bk), £59.99 (ebook)]

[...]data retention can seriously interfere with privacy and rights of data protection, engaging the delicate balance between rights and freedoms, on the one hand, and security, on the other, which in turn impacts the very foundations of democracy. [...]data retention—and surveillance in general—engages a third ‘actor’ in the rights–security relationship, this being technology. After setting out the domestic legislation implementing the 2006 EU data retention directive in each State, the authors consider whether such national measures had already been the subject of any constitutional or supreme court decisions before the European Court of Justice (ECJ) ruled the data retention directive invalid in 2014. [...]there is no doubt that this book provides a valuable overview of the evolution of European surveillance law (and related case law) in the first two decades after the 9/11 attacks.

Influence of COVID-19 on the University Examination Situation of Students with Impairments

In Germany, 11% of students are handicapped with a disability or chronic illness, which negatively affects their studies. In pre-pandemic times, universities worldwide already worked hard to give handicapped students a chance to graduate. In the COVID-19 pandemic, examination boards had to be creative in finding individual solutions to ensure equal examination opportunities for students with impairments. To ensure equal examination opportunities in pre-pandemic times, universities offered compensation of disadvantages for disabled or chronic ill students. While the COVID-19 pandemic, support of disadvantaged students become more important but also demanding for universities. Universities switched to online teaching and replaced classical testing types by distance and/or online examinations. Therefore, the question arose if current examination regulations and established case law relating to compensation of disadvantages in university examinations still are applicable in the pandemic situation. For the research results, literature review of examination regulations and of established German case law was combined with an analysis of the authors' experience gained in the last 1.5 years. In the first part of the paper, the authors inform about the principles of compensation of disadvantages in university examinations for impaired students. Furthermore, they analyze current examination regulations and established case law in Germany. The paper informs about pandemic-related adaptions in teaching and testing at German universities and the influence on disabled or chronic ill students. Even in pandemics, compliance of examination procedures with university examination regulations and other relevant law is mandatory for a fair examination procedure. After a successful overcome of the pandemic, universities will continue to use the innovative examinations types. The authors conclude that most of the existing examination regulations and relevant case law are applicable to innovative examination types and conditions. Nevertheless, for selected impairments, compensation of disadvantages is no longer necessary, or at least not in the usual extent. © 2022 IEEE.

LIBRES PROPOS SUR LA FORCE MAJEURE INVOQUÉE PAR LE CRÉANCIER

En raison de la crise sanitaire liée à la pandémie de la Covid-19, la force majeure connait un regain d'attention jurisprudentielle. Plusieurs affaires récentes jettent un éclairage particulier sur une question largement ignorée jusqu'alors, soit celle de la force majeure invoquée par le créancier d'une obligation. Les perspectives ouvertes par l'admission d'une telle possibilité dans notre droit sont incontestablement de nature à séduire certains acteurs juridiques. Toutefois, cette admission n'irait pas sans poser de nombreux défis pour l'ordonnancement de la théorie générale du contrat. L'auteur tente de démontrer ici qu'il s'agit en réalité d'une fausse question qui connait déjà des solutions bien établies qu'il n'apparait pas opportun de remettre en cause.Alternate :Due to the health crisis linked to the Covid-19 pandemic, force majeure is experiencing renewed attention in case law. Several recent cases shed light on an issue that was largely ignored until now, namely, that of force majeure invoked by the holder of an obligation. The prospects created by the admission of such a possibility in our law will unquestionably appeal to certain legal actors. However, this admission would not go without creating many challenges for the ordering of the general theory of contracts. The author attempts to demonstrate here that this is in fact a false question that already has well-established solutions which it does not seem necessary to call into question.

Comments on the jurisprudence of the Constitutional Court of the Czech Republic on copyright

This paper focuses on the analysis of the application of the principles and provisions of constitutional law to the area of copyright in selected case law of the Constitutional Court of the Czech Republic and confirms their general importance, which manifested itself in the problems of legislation and case law during the Covid-19 pandemic. The starting point is to identify the principles and individual provisions of the constitutional law of the Czech Republic applicable to the protection of intangible objects of copyright, in particular the provisions of Art. 34, (1) Charter of Fundamental Rights and Freedoms of the Czech Republic on the protection of the results of creative intellectual activity. The aim is to find out how the Constitutional Court resolves conflicts between individual constitutional rights when they are infringed. Further goal is to consider the concept of constitutional protection of this field in the Czech Republic to compare with the concept of constitutional EU law and with international law. This will be done using the method of analysis and legal comparison.

PROTECTING GIG WORKERS' INTERESTS IN MALAYSIA THROUGH REGISTERED ASSOCIATION UNDER SOCIETIES ACT 1966 *

Model ekonomi gig telah memberi kesan yang besar kepada pertumbuhan ekonomi dunia. Melalui kontrak untuk perkhidmatan, pencari pekerjaan atau pekerja gig mempunyai peluang untuk bekerja di pelbagai sector dengan kelebihan dan faedah yang terhad. Model ekonomi gig ini telah memberi cabaran baharu terhadap hubungan pekerjaan dan industri kerana status mereka sebagai kontraktor bebas. Ketiadaan kesatuan sekerja untuk mewakili pekerja gig menyebabkan hak dan kepentingan mereka sering diabaikan dan dimanipulasi oleh penyedia perkhidmatan. Oleh itu, tujuan artikel ini adalah untuk meneroka badan alternatif yang boleh mewakili kepentingan pekerja gig dan terlibat secara aktif sebagai pemegang taruh dalam ekonomi gig ini. Kajian ini menggunakan pendekatan kajian perundangan bagi menganalisis struktur perundangan terbaik bagi memelihara hak pekerja gig untuk berpersatuan. Artikel ini menganalisa peruntukan undangundang dan kes mahkamah menggunakan analisis kandungan bagi mencadangkan struktur terbaik yang boleh melindungi hak pekerja gig untuk berpesatuan. Kajian ini mendapati bahawa persatuan berdaftar di bawah Akta Pertubuhan 1966 adalah platfom yang paling sesuai yang boleh memainkan fungsi kesatuan sekerja dalam memelihara kepentingan pekerja gig di Malaysia.Alternate :The gig economy model has had a significant impact on global economic growth. Through contracts for services, job seekers or gig workers will have opportunities to work in many sectors with limited advantages and benefits. This gig economy model has posed challenges to employment and industrial relations due to the gig workers' status as independent contractors. In the absence of trade unions to speak on their behalf, the service providers may neglect and manipulate their rights and interests. This paper aims to explore the alternative body to protect the interest of the gig workers and to be the main stakeholders in the gig economy. This article uses doctrinal legal research to analyse the best platform for gig workers to unionise. This article analysed legal documents, namely legal provisions from various legislations and case law using the content analysis approach, and thereafter proposed the best legal structure to protect gig workers' rights to unionise. This article found that the registered society structured under the Societies Act 1966 is the most suitable platform which can play an important role similar to trade unions in its functions to represent gig workers' interest in Malaysia.

Betekintés a Kúria joggyakorlat-elemző munkacsoportjának munkájába

Cél: A szerző a Kúria emberkereskedelem bírói értelmezését vizsgáló joggyakorlat-elemző csoportjának vezetőjeként a joggyakorlat-elemző csoport munkájának bemutatására vállalkozik. Módszertan: A tanulmány első részében a vizsgálat tárgyának megjelölése mellett a csoport megalakulása és eddigi munkája kerül bemutatásra. Részletezésre kerül a megalakulás körülményei a váratlanul kitört COVID–19-világjárvány közepette, és miképp érintette a csoport munkáját az a nem mindennapos tény, miszerint a megalakulást követően igen röviddel a vizsgálat tárgyát képező jogterület jogi szabályozása teljes egészében megváltozott. Megállapítások: Az írás második részében mintegy a joggyakorlat-elemző csoport hipotéziseként részletesen írás olvasható az emberkereskedelem törvényi tényállásának és bírói gyakorlatának változásairól, választ keresve arra a kérdésre, hogy milyen nehézségek jelentkeztek rendszerszinten az emberkereskedelem beiktatásával a jogalkalmazásban, hogyan ütköztek az e címen büntetni rendelt magatartások más, a magyar jogrendszerben mélyen gyökerező törvényi tényállásokkal, milyen megoldásokat keresett a jogalkalmazó és a jogalkotó e problémák feloldására, és mi várható a jogalkalmazásban az emberkereskedelem törvényi tényállásának legutóbbi, teljes átstruktúrálását követően. Érték: A Kúria joggyakorlat-elemző csoport munkájának bemutatásán keresztül kutatás olvasható az emberkereskedelem törvényi tényállásának és bírói gyakorlatának változásairól.Alternate : Aim: The author undertakes to present the work of the case law analysis group as the leader of the jurisprudence analysing group by examining the judicial interpretation of human trafficking of the Supreme Court. Methodology: In the first part of the study, in addition to indicating the subject of the study, the formation and work of the group so far are presented. The circumstances of the formation in the midst of the unexpected COVID pandemic and how the group’s work was affected by the unusual fact that the legal regulations of the area under investigation have changed completely shortly after its formation are detailed. Findings: In the second part of the paper, as a hypothesis of the jurisprudence analysis group, a detailed article is written on the changes in the legal situation and judicial practice of trafficking in human beings, answering the question of systemic difficulties in enforcing with other legal facts deeply rooted in the Hungarian legal system, what solutions did the law enforcer and the legislator seek to solve these problems and what can be expected in the application of the law after the last, complete restructuring of the legal facts of human trafficking. Value: Through the presentation of the work of the Suprem Court’s case law analysis group, research on changes in the legal facts and judicial practice of human trafficking can be read.

Covid-19 in investment arbitration. A legal answer

During today’s situation of COVID-19, States take emergency measures which will be subject to investment arbitration claims sooner or later. The aim of this paper is to provide a possible solution to such cases where the State’s and the investor’s interests compete with each other. By analysing cases from the 21th century and applying my findings to hypothetical COVID-19 cases, a general answer on how to solve COVID-19 related investment disputes shall be given. © 2021, Pontificia Universidad Catolica Argentina. All rights reserved.

Greece ∙ Upgrading the National Framework

[...]Law 4412/2016 reflected in many aspects the initial embarrassment of national market before modern public procurement norms. [...]partly due to political conditions and partly due to pandemic urgency, procurement stakeholders in Greece pressed decision-makers for deeper understanding and integration of the directives. [...]during the past year Greece has made significant steps towards the upgrade of the national framework. [...]by virtue of l. 4782/2021: (a.) contracts with an estimated budget up to €2,500 are now named ‘minor value contracts’ and can be therefore awarded without the duty to follow existing administrative procedure,5 (b.) the threshold for direct awards is raised from €20,000 to €30,000,6 (c.) ‘informal tender process’ for the award of contracts with an estimated budget up to €60,000 is abolished, (d.) the mandatory implementation of the digital National Public Procurement System (ESIDIS/ΕΣΗΔΗΣ) is expanded to awarding procedures of contracts with a value of more than €30,000 instead of the former limit of more than €60,000,7 (e.) the duty to submit European Single Procurement Document (ESPD/ΕΕΕΣ) is expanded to all awarding procedures, in replacement of the respective (TEYD/ΤΕΥΔ) document that was used for contracts with an estimated value of less than €60,000, (f.) for their participation to be valid, all economic operators will have to file the respective letter of guarantee until the deadline for the submission of tenders, (g.) the previous conduct8 of economic operators will be recorded to a special database which will be accessible to all awarding authorities, (h.) the amount of good performance bond is reduced to 4% of the contract value for goods and services, while it is set at 5% of the contract value for works,9 (i.) in case of capacity lending, contracting authorities shall set a 30-day-deadline for the replacement of a third party, if the lenders do not meet the eligibility requirements or are they subject to obligatory exclusion,10 (j.) in most economically advantageous tender in terms of cost procedures, contracting authorities shall be entitled to issue a single decision for their evaluation validating the results of all stages of the process11,12 (k.) in most economically advantageous tender in terms of quality procedures, contracting authorities are entitled to structure the process in two stages, where participation documentation is evaluated jointly with technical offer and financial offer is evaluated jointly with awarding documentation,13 (l.) provided that equal treatment and transparency principles are observed, awarding authorities may not only ask for clarification, but even for supplementary information or for documentation missing,14 (m.) especially for works: (i.) tender processes may begin before the issuance of Environmental Terms Approval15, (ii.) awarding authorities may allow for works supervision that certified private professionals be hired,16 (iii.) in case of early delivery of the work, contracting authority may pay a prim amounting up to 5% of contract value,17 (iv.) depending on the rules set in the Call, economic operators may be allowed to form consortia after the award of the contract, (v.) for contracts whose value exceeds the €10 million recourse to arbitration shall be possible subject to pertinent clause being included in contractual documentation.18 By introducing such rules, l. 4782/2021 is expected to speed up procedures, to raise competitiveness, to trigger further digitisation of public procurement and finally to facilitate the access of small and medium enterprises to the market of public supplies, works and services. In 2020’s Greece, according to the National Public Procurement Database [ppp.eaadhsy.gr], public authorities awarded contracts worth about: €4.1 billion for the purchase of works, €2.4 billion for the purchase of services and €3.1 billion for the purchase of goods. [...]the main problem of Greece’s public procurement market, affecting also the relative legal framework, is the small size of public budget spent on contracts.