Presenters: Accepted Abstracts

Baker, Roger (United Kingdom): Review and Contract Change of an IT outsourcing contract

Bruner, Christopher M. (USA): Culture, Sovereignty, and Hollywood: UNESCO's Convention on the Protection and Promotion of the Diversity of Cultural Expressions and the Future of Trade in Cultural Products

Iversen, Jes Martin and Sornn-Friese, Henrik (Denmark): The Danish shipping industry and the transformation of the Danish economy, 1986-2006

Majid, Ali Amir (UK, Pakistan): Accessibility of Internet to The disabled persons - A Rights Approach

Selby, John (Australia): A Preliminary Institutional Analysis of aspects of the .au Domain Name Space

Soloveicikas, Deividas (Lithuania): ECECT Effect of EC Law and Its Evolution in Lithuania

Willesee, Bill (Australia): Disclosing identity of internet users

Wolski, Bobette (Australia): Possibilities for Weaving Mediation into the Framework of International Dispute Settlement Systems
Review and Contract Change of an IT outsourcing contract by Roger Baker, Consultant and adviser, Itemplus & UK House of Commons, United Kingdom.
Roger Baker BA.Econ hons, FBCS, ACIB, LLM (Strathclyde) has a career spanning banking & insurance IT systems development, IT management and consultancy, and in recent years financial services regulation and IT Law. A former advisor to UK House of Commons Select Committee on Science & Technology, he established the British Computer Society's Financial Services Specialist Group, and has contributed to the Society's publications on Offshore Outsourcing, e-Commerce, the Euro, Year 2000 and Data Protection. A senior management consultant, he specialises in the IT aspects of financial services regulation, including data protection in global organisations. He also is involved in assessment of IT outsourcing contracts, their review and the evaluation and selection of new bids.
Abstract
In every IT outsourcing contract, there are a set of review clauses. These are intended to give the client and the service provider the opportunity to assess the service and whether it meets the service levels originally agreed. Typically a significant underperformance will result in service credits - where the service provider repays money to the client proportionate to the underperformance - and a requirement for the service provider to improve the performance back to the level required by the contract within a specified time at its own expense. If it fails to do this, the contract may automatically terminate at no cost to the client.

However, business and IT requirements change over the years, and therefore the contract review clauses may also be required to provide flexibility to amend services (including bringing the service definitions and service levels up to the newly required levels, renegotiation and re-alignment of services and charges to what is now required). This review may not be triggered by an underperformance - merely a change in requirements and a need to update the contract.

Irrespective of whether the driver is service underperformance or changing requirements, a service review is more than mere contract redrafting and provides potential for significant dispute, for example:

  • Is the service satisfactory? The service provider and client may disagree.
  • Is it good value for money? There may be bitter disagreement.
  • How does the service compare to equivalent services by other service providers? There may be disputes over comparability.
  • What needs to change and who pays? Each blames the other and expects the other to change at no cost.

These disputes could cloud the objectivity of the review and in some cases damage the client/supplier relationship. Rather than Mediation or ADR, finding an Equitable Assessment Approach - acceptable to both sides and then managing this process through - is one of the keys to a successful outcome.

This paper assesses the 4 stages necessary for such a successful IT contract change:

  • What was bought according to the contract?
  • What is being delivered now?
  • What is required from now onwards?
  • How do we get there, from here, hopefully together?
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Culture, Sovereignty, and Hollywood: UNESCO's Convention on the Protection and Promotion of the Diversity of Cultural Expressions and the Future of Trade in Cultural Products by Christopher Bruner, Texas Tech University School of Law.








Christopher Bruner is an Assistant Professor at Texas Tech University School of Law, where he has been appointed to teach courses including business entities, securities regulation, and mergers & acquisitions. Prior to joining the faculty of Texas Tech, he taught corporate law as a Visiting Assistant Professor at Boston University School of Law. Professor Bruner received his A.B. from the University of Michigan in 1995 and his M.Phil. from Oxford University in 1997, where he held an Overseas Research Student Award. In 2001 he received his J.D. from Harvard Law School, where he served as Deputy Editor-in-Chief of the Harvard International Law Journal. He was admitted to the bar in the Commonwealth of Massachusetts and practiced with Ropes & Gray LLP in Boston, working with private and public companies on a range of general corporate, transactional, and securities matters. Professor Bruner has written in a number of areas including corporate law, securities regulation, international trade and investment, European Union law, and the global economy. He co-authored a number of case studies and technical notes while a Research Associate at Harvard Business School, and his articles have appeared in both law and policy journals.
Abstract
In October 2005, UNESCO’s General Conference adopted a treaty (148-2, with 4 abstentions) legitimating legal measures to protect domestic producers of “cultural” products – a major blow to the United States, audiovisual products being among America’s most lucrative exports.  This paper examines the UNESCO Convention’s legal and diplomatic significance.  Following a brief look at conceptions of “culture,” the paper discusses cultural provisions in various trade regimes, UNESCO’s history, and the UNESCO Convention itself, concluding that it will have little effect on existing trade obligations, but a significant impact on the future of audiovisual trade under the WTO system.  The efficacy of the Culture Convention will ultimately depend on the perceived normative legitimacy of protecting cultural diversity through domestic legal measures.  The paper concludes with a broader look at the “trade and culture” debate, arguing that the burden remains on the United States to demonstrate the benefits of audiovisual liberalization. Available at http://ssrn.com/abstract=936734
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The Danish shipping industry and the transformation of the Danish economy, 1986-2006 by Martin Jes Iversen and Henrik Sornn-Friese, Copenhagen Business School.
Martin Jes Iversen (MA in history 2000; Ph.D., Copenhagen Business School) Associate professor at the Centre for Business History, Copenhagen Business School. Research interests: The development of big companies after 1945 in Northern Europe with weight on the management structures and business strategies; the role of private enterprises in the development of the modern capitalistic societies including the relation between the companies and the state and the importance of the industrial clusters. Current activities: Leader of the Danish state funded research project Mapping Corporate Denmark. Initiator of the international teaching project Creating Nordic Capitalism in corporation with Stockholm School of Economics, Helsinki University and BI Oslo.
Henrik Sornn-Friese is Associate Professor at the Copenhagen Business School.
Abstract
In recent years the remarkable transition of the Danish economy - from a relatively closed, average performing economy towards a very open, high-performing economy - have attract much attention from economists, journalists and politicians. One of the most accepted patterns of explanations is to be found with the political-economic tradition which focuses on the importance of1 he specific Danish political-economic institutions - for instance the so-called "flexicurity" labour market system. Another possible pattern of explanation is the remarkable growth and globalization of the private Danish sectors ( Pedersen: Global Offshoring, CBS Press, 2006; Iversen: Corporate responses to institutional changes - the effects of Europeanization in the case of Denmark, 1973-2003, 2006.) This paper follows the later pattern of explanation and focus specifically on the relative importance of one sector - the shipping industry- to the Danish economy. We focus on three bench mark periods 1986, 1996 and 2006 and try to analyse the relative importance of the shipping industry in these three benchmark years. The hypothesis is that the importance grew over time and the paper will thus contribute to the recent debate on the importance of having an indirectly state subsidised shipping industry as raised by the Danish Economic Council in June 2006.( Det Økonomiske Råd, Halvårsrapport juni 2006)
1. See for instance Campbell, Hall and Pedersen:  The Danish Experience, DJØF, 2006
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Accessibility of Internet to The disabled persons - A Rights Approach by Amir Ali Majid. London Metropolitan University






Dr. (Judge) Amir Ali Majid (BA Punjab ; LLB Hons-LLM , London);DASL, Dip in Air & Spc Law,London Institute of World Affairs);DASL-Dr. of Civil Law, McGill University ; FRSA, Barrister, Lincoln's Inn) is member of the Higher Education Academy, Reader in International Law, London Metropolitan University, Practising Barrister, part-time Immigration Judge and Adjunct Professor in Law, Webster University of USA. Dr. Majid has published a law book and 35 articles in British, German, Dutch and American learned journals, as well as 50 journalistic items. He is the first blind person in the world to be a barrister and DCL (Dr. of Civil Law), the first Asian in the UK to be the Secretary of the National Federation of the Blind of the UK (London Branch), member of the Air Transport Committee of the UK International Chambers of Commerce (inter alia advising the Aviation Minister) and the second blind person in the UK to be appointed to a judicial post, p/t Immigration Judge. He was conferred the Sitara-i-Imtiaz, "Star of Distinction" (the second highest civilian honour in Pakistan in 2003). Dr. Majid is also Editor-in-Chief, Journal of Islamic State Practice in International Law.
Abstract
Adopting a purposive and justice-oriented approach to the rights of disabled people, in the UK House of Lords Lord Slynn recommends that a nation should strive to enable a disabled person lead as "normal life" as possible. His Lordship emphasised that "the yardstick of a "normal life" is important; it is a better approach than adopting the test as to whether something is 'essential' or 'desirable'. Social life in the sense of mixing with others, taking part in activities with others, undertaking recreation and cultural activities can be part of normal life. It is not in any way unreasonable that the severely disabled person should wish to be involved in them despite his disability." (Cockburn 1997)
This talk will take forward the debate on this issue, initiated in the similar conference in May 2006 in Hamburg. It will examine the EU, American and British laws to highlight the current developments in this fast-moving field, updating the conference participants about the measures taken by various States to improve the accessibility of internet to disabled people.
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A Preliminary Institutional Analysis of aspects of the .au Domain Name Space by John Selby, Macquarie University in Sydney, Australia.
John Selby is a Lecturer at the Division of Law at Macquarie University in Sydney, Australia












Abstract
This paper forms part of a broader analysis of the .au Domain Name Space. It applies aspects of New Institutional Economics theory to derive insights into the role of and transitions between management rights over the .au domain name space between institutions such as Jon Postel, Robert Elz, ADNA and auDA. It analyses the "make or buy" decision faced by the Australian government when determining the appropriate regulatory regime to implement to regulate the .au domain name space, and ties these theories to aspects of traditional legitimacy and regulatory theories. Elements of principal-agency theory are invoked to highlight some of the challenges of establishing a self-regulatory regime, particularly the risk of capture.
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ECECT Effect of EC Law and Its Evolution in Lithuania by Deividas Soloveicikas, Mykolas Romeris University.
Dr. Deividas Soloveicikas is a reader in law at Mykolas Romeris University in Vilnius, Lithuania






Abstract
The question of the direct effect of the Community law has always been a problematic for both the legal practice and the doctrine of the European Community law. There have been many attempts by scholars to either deny completely or partially or advocate the continuance of the concept of direct effect during the long years of its existence. Moreover, it should be emphasized that the legal doctrine on the afore mentioned subject was strongly influenced by the whole line of case law of the European Court of Justice (ECJ). Accordingly, it could be stated that the concept of direct effect is widely discussed in theory as well as applied in practice by the ECJ and national courts, though many problems related to this subject have not yet been properly addressed. Thus, this makes the present topic relevant for an analysis at the present time. The main objective of this paper is to examine the underpinnings of the existence of the direct effect doctrine and arguments contra and pro the doctrine as well as to answer the question whether the Community is about to grow out of it or not. Moreover, the article focuses on trends of application of EC direct effect in Lithuania by analysing the relevant case-law of Lithuanian courts. The preceding analysis of the Court's case law as well as of the legal doctrine concerning the direct effect of the Community law allows us to state that the arguments against the direct effect as well as the statements that the latter concept does not have a future should be deemed to be the bygone era. The doctrine of the direct effect has gone a long way in its development and evolution in both case law and legal theory. The doctrine has its own "shape" at the present time, i.e. it is clearly, albeit not completely precisely, defined, it has its forms and the legal technique for their implementation. The concept of direct effect has always been supported by and still is applied in the case law of the Court and is advocated in the legal theory by many scholars.
It could also be stated that the arguments in favour of the direct effect of the EC law have more support than statements against it. The present trends of the development of the doctrine show that it is being searched for possibilities of expansion of the application of the doctrine, rather than to diminish its effect or to abandon it.Although the ECJs' case law in the area of the direct effect is very complex and sophisticated it does not hamper the evolution of the doctrine. In contrary, the ECJ is the institution that did not maintain the "black letter approach" to the interpretation of the Community law and has always upheld the application of the doctrine in cases in which it could be applied. Lithuanian courts are still trying to grasp the concept of direct effect. This is natural for the country in which the EC law is still an emerging legal area. It might be believed that in the nearest future more cases will be come across where national courts will be willing to apply the EC law and to safeguard the interests of EC nationals guaranteed by the law of the Community.
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Disclosing identity of internet users by Bill Willesee. Curtin University of Technology in Perth, Western Australia
Bill Willesee, a former solicitor, is now a lecturer in the School of Business Law at the Curtin University of Technology in Perth, Western Australia. He graduated with degrees in Law and Economics from the University of Western Australia and has gained a Post Graduate Diploma in Computing and a Post Graduate Certificate in Tertiary Teaching. He also holds a Masters of Law degree, (in e-Law) from the University of Melbourne. His research area is Internet Law and the use of the new technologies in legal education.
Abstract
The obligation on Internet service providers to disclose the identity of its subscribers when it is alleged that a subscriber has downloaded copyright material, posted a defamation or otherwise breached the plaintiff's rights has to be balanced against that subscribers privacy rights. This paper looks at and contrasts the approach to this issue taken by courts from the US, the UK, Canada, Australia and the EU and notes some similarities but also notes some very different principles at work. What happens when private property rights come into conflict with personal privacy rights?
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Possibilities for Weaving Mediation into the Framework of International Dispute Settlement Systems by Prof. Bobette Wolski. Bond University







Bobette Wolski. After gaining admission to the legal profession in 1984, Associate Professor Wolski spent 10 years in private legal practice as a civil and family law litigator. She began her teaching career at Bond University in 1994. She is currently an Associate Professor of Law at Bond University where she teaches civil procedure, international dispute settlement, mediation, advocacy and a range of other dispute resolution courses. She is a practising Solicitor and Mediator accredited with the Supreme Court of Queensland and the Legal Aid Office (Queensland). Associate Professor Wolski is a regular instructor at mediation, negotiation and trial advocacy skills courses for legal firms and a number of professional bodies in Australia, including the Office of the Director of Public Prosecutions (Queensland). She has written numerous articles on dispute resolution and legal education. Her most recent work is a text titled Legal Skills: a practical guide for students, 2006, Thomson LawBook Co, Sydney, Australia.
Abstract
In the last two decades, mediation has become increasingly popular as a method of settling domestic disputes in Australia and many other common law-based countries. The impetus for this development is the enthusiastic embrace given mediation by courts and tribunals in these countries - mediation (albeit in hybrid forms) has been worked into the framework of domestic dispute settlement systems.

In contrast, at the international level, it is judicial and quasi-judicial dispute settlement bodies that have flourished and many of these bodies use processes which are largely adversarial in nature.

This paper examines the reasons for these divergent trends.  It also considers:

1. Ways in which mediation (and other forms of negotiation) may be usefully incorporated into the framework of various international judicial and quasi-judicial institutions.

2. Ways in which mediation can be adapted to offer the parties the same benefits they derive from judicial methods
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