Journal articles on the topic 'Ex Officio Application of the choice-Of-Law rule'

Abstract: The Europeanization of national civil procedure law consists out of several pillars. The influence of the European Convention on Human Rights (ECHR) is well known. A second pillar of the European influence on civil procedure law is the growing number of European regulations concerning the crossroads of civil procedure law and private international law. This article focuses on the Europeanization of national law by a third, ‘invisible pillar’. The European influence in the ‘invisible pillar’ concerns many topics, such as ex officio application law, burden of proof, means of proof, costs, the free choice of a lawyer, the threshold amount exempt from seizure and arbitration. The first part of this invisible pillar follows from the role of national civil procedure law in enforcing EU law. The European Court leaves the procedural law to the national courts. The second area of the invisible pillar concerns procedural rules in Directives. A close look at several Directives reveals that the list of procedural topics touched upon by Directives is far from small. Directives contain procedural rules relevant for various capita of the civil procedure law of the Member States. This article seeks to shine some light on parts of this pillar by examining three topics: ex officio application, costs and the free choice of a lawyer, and legal expenses insurance. These examples serve to demonstrate that this area covers a wide variety of topics. Three problems relating to this invisible pillar will be identified: uncertainty, external differences, and internal differences.

Resumen: El sistema español de tratamiento de la ley extranjera se construye sobre tres pilares, el que sanciona la imperatividad de la norma de conflicto, las reglas sobre medios de prueba y la previsión de las consecuencias de la falta de prueba de tal ley. La interacción de estos pilares debe traducirse en respuestas diferenciadas según el sector del Derecho en el que nos encontremos. En los procesos matrimoniales no existe espacio para la libertad de los particulares y sí fuertes intereses públicos, lo que significa que el órgano judicial tiene que aplicar no sólo la norma de conflicto sino también el ordenamiento reclamado por ésta, investigándolo de oficio si no lo aportan los litigantes. Único condicionante es el respeto del contradictorio y la interdicción de la indefensión.Palabras clave: procesos matrimoniales, derecho extranjero, imperatividad de la norma de con-flicto, reglamentos europeos.Abstract: The Spanish system of procedural treatment of foreign law is built on three main pillars: the one which sanctions the imperativeness of the choice of law rule, the rules on means of evidence, and the forecast of the consequences of the lack of evidence of such a law. The interaction of these pillars has has to be translated into differentiated responses according to the material sector of the Law in which we find ourselves. In matrimonial proceedings there is no room for the freedom of individuals, because of the strong public interests. Consequently, this means that the judicial body has to apply not only the conflict rule, but also the regulation claimed by it, even investigating it ex officio if it has not been brought by any of the parties. The only constrains are the respect of the right to an adversarial proceeding and the interdiction of the lack of defence.Keywords: matrimonial causes, Foreign Law, mandatory application of the Choice of Laws Ru-les, EU Regulations.

Abstract: This article examines the Asturcom judgment of 6 October 2009 from the angle of ex-officio application of European law, specifically in terms of procedural autonomy, public policy, and international arbitration. In Asturcom, the ECJ was confronted with enforcement proceedings of a final arbitration award made in the absence of the consumer based on an arbitration agreement that contained a potentially unfair term. The ECJ examined the national rule under the principle of procedural autonomy in the form of the effectiveness and equivalence tests. It extended the use of the ‘contextual effectiveness test’ developed in Peterbroeck/van Schijndel to Consumer law. Most remarkably, the ECJ has manipulated the ‘equivalence test’ as to grant certain European norms public policy status on national level. Lastly, in terms of arbitration, the judgment reaches a result that is in conformity with international law. Résumé: Cet article étudie l’arrêt Asturcom rendu le 6 octobre 2009 vue sous l’angle de l’appréciation d’office du droit européen, notamment les aspects de l’autonomie procé-durale, l’ordre public, et l’arbitrage international. Dans Asturcom, la CJUE était confronté par une procédure d’exécution forcée d’une sentence arbitrale définitive rendue en l’absence du consommateur basée sur une convention d’arbitrage qui renferme éventuellement une clause abusive. La CJUE vérifie la règle nationale sous le principe de l’autonomie procédurale en forme des tests d’effectivité et d’équivalence. Elle a élargit l’utilisation du teste de ‘l’effectivité contextualisé’ développé dans Peterbroeck/van Schijndel en droit de la consommation. Digne d’attention la manipulation de la DJUE du ‘teste d’équivalence’ qui reconnait pour certains normes européens statut d’ordre public au niveau national. En dernier, en ce qui concerne l’arbitrage, le jugement aboutit au résultat conforme au droit international.

This article discusses the proposal issued by the European Commission (Commission) on 10 April 2013, for the modernization of the EU's trade defence instruments (TDI). Considering the time that has lapsed since the last TDI review, a modernization aimed at increasing transparency and bringing the application of TDI in line with modern day realities and the WTO Agreements as interpreted in WTO disputes certainly seems opportune. However, the Commission's proposal seems to be a missed opportunity. On the one hand, it champions protectionism by giving primacy to ex officio investigations and the abolition of the lesser duty rule in anti-subsidy investigations and when 'structural raw material distortions' exist, on the other hand, it fails to adequately address administrative transparency, an area in which the EU system has been lacking and compares unfavourably with other traditional TDI users such as the United States (US) and Canada. As many WTO members have patterned their TDI after those of the EU, the butterfly effect will almost certainly come back to haunt EU exporters.

ABSTRACT: Recent case law from arbitration laden jurisdictions has reignited the discussion of an arbitrator's ex officio application of the law when the parties have chosen the law applicable to the merits of the dispute, but have not invoked certain legal arguments during the arbitral proceedings. Specifically, this survey analyzes the issue of an arbitrator's ex officio application of the law from the perspective of the maxim iura novit curia and foreign mandatory rules in order to ascertain whether the recourse to these two tenets by way of analogy are appropriate in the context of international commercial arbitration.

Throughout 2019 the Magetan Religious Court has decided on divorce cases accompanied by the distribution of joint assets in four cases. From the four cases, legal dynamics emerged in their decisions, namely regarding the use of ex officio rights with reference to statutory regulations and the application of the principle of ius contra legem in deciding cases. The focus of the study in this thesis is the application of the ex officio rights of judges and the principle of ius contra legem in the case of sharing assets in the Magetan Religious Court with a progressive legal perspective. The approach used in this research is the progressive legal approach, which studies how the law is applied and whether it is in accordance with the principles of justice that make law for humans. Meanwhile, the theory used is a legal discovery with the characteristics of progressive law. Whereas the use of ex officio rights by applying the principle of ius contra legem solely aims to protect the legal interests of justice seekers by using the spirit of progressive law which is based on the legal interests of justice seekers which must be put forward rather than merely referring to codified rules, however, the judges do not abandon the legal principles which form the basis of the judges' thinking and actions in examining, hearing and deciding cases.

Individual taxpayers can make a direct appeal to EC law which is sufficiently precise and unconditional for national courts of law. However, if a taxpayer fails to make an appeal to a clear infringement of EC law during a court procedure, the question arises whether a national court is authorized, or even obliged, to consider of its own motion whether a domestic tax provision is incompatible with EC law. In this article the applicable Community procedural framework as developed by the ECJ is depicted, which framework can be considered as a minimum harmonization of the national procedural law provisions of the various Member States. Subsequently, the conditions under which a domestic court is obliged to apply EC law of its own initiative are discussed. For illustration purposes the Dutch procedural rules in tax cases are assessed within the Community procedural framework.

Arbitral tribunals with seat in Switzerland are required to apply EU law under various conditions: It seems fairly clear that the arbitral tribunal needs to apply EU law, if the parties have chosen the law of an EU member state as lex causae, as EU law forms in this case part of the chosen law. The same applies when the parties have forgone to make a choice of law and the closest connection test results in the application of the law of an EU member state. In case the parties have chosen a third state’s law as lex causae, the arbitral tribunal needs to consider EU law, if a party invokes its application. Last, the arbitral tribunal may in some instances apply EU law ex officio, even if none of the parties have invoked the application of EU law. Although the arbitral tribunal may be required to apply EU law, the failure to apply or the wrong application of EU law does not necessarily result in setting aside of the award by the Swiss Federal Supreme Court. The failure to apply or the wrong application of EU law does not violate public policy. Hence, a challenge of the arbitral award based on art. 190 (2) e PILA will be unsuccessful. This holds also true if the arbitral tribunal decides not to apply EU competition law, as the Swiss Federal Supreme Court does not consider EU competition law part of public policy. The failure to apply EU law by the arbitral tribunal will only then result in a successful challenge of the arbitral award based on art. 190 (2) b PILA, if the arbitral tribunal found that EU law would be applicable to the dispute but denies its jurisdiction to decide the EU law issue.

Summary As a response to possible distortive effects of foreign subsidies, which are not covered by the current rules of the World Trade Organization and primary and secondary law of the EU, on 6th May 2021 the European Commission introduced a new regime against foreign subsidies by introducing the proposal of the Regulation on foreign subsidies distorting the internal market. This new proposal includes three so-called modules: a set of measures of general application that governs the ex officio review of subsidies (Module 1), specific rules on concentrations (Module 2) and specific rules in public procurement in the EU (Module 3). The paper will focus on some of the features of Module 3 and assess the context, feasibility, and possible consequences for the course of public procurement in the EU covered by the public procurement directives

Under European Union (EU) law, arbitrators and national courts are obligated to apply, ex officio, EU competition law. Also according to EU law, any failure by an arbitral tribunal to apply such rules, or any erroneous interpretation or application hereof, constitute grounds for setting aside the subsequent award, if and when such measure is dictated by the Member State’s procedural rules. This article examines the relevant procedural rules in Denmark and Sweden based on two recent decisions by the national Supreme Courts. It concludes that under Scandinavian procedural law, courts will generally limit their inquiry to a superficial review of the premises of the award and will only reluctantly set aside an otherwise valid award based only on matters of merit. The main purpose of this article is to provide an up-to-date analysis of the position of the Scandinavian courts, thus helping to ‘map’ the European arbitration landscape. Even so, we have attempted to include and contribute to a few of the main discussions concerning the landscape in which the decisions were rendered in the introductory section. In the last section, we build on the reasoning of the two Supreme Courts in order to propose a framework for understanding the interplay between national and EU law, at least in the Scandinavian countries.

In order to ensure uniform application of the tax law by tax authorities, the minister responsible for public finance (Minister of Finance, MoF) may issue general interpretations of the tax law ex officio or at the request of a taxpayer. When issuing general interpretations, the MoF is subject to the same rules of interpretation as any interpreter. In particular, when interpreting tax law, the MoF cannot change the content of the interpreted provisions of law, as such action would exceed the limits of interpretation and encroach on the territory reserved for the legislator. This article positively verifies the hypothesis that the MoF, in its general interpretation of 25 October 2019, while clarifying the scope of the exemption from taxation of income from activities in the Polish Investment Zone, added to the provisions of the income tax laws a condition of “close connections” for such exemption, which never existed in tax law. Thus, it unlawfully took over the role of the legislator. The article thoroughly analyses the reasons and consequences of such an action, including the most recent legislative changes implemented within the framework of the so-called Polish Deal.

The subject of this research is opportunities for effective use of human capital members of the collective in the conditions of self-governance and self-organization resources. It is assumed that members of the collective are capable to jointly create an additional cost by making individual efforts. Value of the expected gross income increases with the efforts put by each agent, and subordinated to the law of diminishing returns. The goal of each member of the collective consists in maximization of the own individual profit. Overcoming ineffective equilibrium faced by the collective as a result of independent choice of amount of effort applied by the members, and achievement of Pareto-preferred outcome requires corresponding coordination of collective actions. The key goal of coordination consists in overcoming opportunistic behaviors in form of shirking and such setting of incentive system that would results in application of optimal efforts by all members of the collective. Within the framework of mathematical model structured on the general principles, the author determines the essential conditions for achieving this goal. One of them dictates a corresponding strategy, another one – formulates the ex post rule of distribution of value of the expected gross income, perceived by all members of the collective as ex ante. According to this rule, the portion of each member of the collective in gross income must be equal his portion of efforts. Acceptance of this rule allows implementing a strategy, which motivates each member of the collective to apply efforts that would meet the maximal combined profit.

The journey of the human society has gone through many challenges, the organization of which was based on written and unwritten rules that were used to preserve the kind. Later on these rules are replaced with written codes and laws. The separation in between criminal law and criminal procedure has its genesis with the appearance of the Austrian Criminal Code (1803). As it is historically known, after the Balkan Wars (1912), Kosovo was invaded by Serbia and Montenegro. On the Paris Conference (1919-1944) it was appended to the Yugoslavian Kingdom, Tito’s Yugoslavia (1945-1989 constitutive element of Yugoslavia). On March 23rd 1989 Milosevic destroyed its Autonomy with violence. On 1998-99 the war with Serbia breaks out, which on 10th of June 1999 ended (after NATO’s intervention), therefore installing the UNMIK Misssion and administration that even after the Declaration of Independence of Kosovo (17th February 2008). After UNMIK’s administration in Kosovo, the Law of the Criminal Procedure of ex-Yugoslavia was an applicable law. Its application was extended until the drafting and application of the Temporary Criminal Procedure Code of Kosovo (2004). The comparative methodology, written sources and different official raports are used to write this paper. The comparative data shows that with new Code, the authority of the Prosecution is empowered therefore weakening the role of the Court in the pretrial procedure, the number of the prescribed cases has risen and the discontent of the citizens also, towards the judicial system.

The journey of the human society has gone through many challenges, the organization of which was based on written and unwritten rules that were used to preserve the kind. Later on these rules are replaced with written codes and laws. The separation in between criminal law and criminal procedure has its genesis with the appearance of the Austrian Criminal Code (1803). As it is historically known, after the Balkan Wars (1912), Kosovo was invaded by Serbia and Montenegro. On the Paris Conference (1919-1944) it was appended to the Yugoslavian Kingdom, Tito’s Yugoslavia (1945-1989 constitutive element of Yugoslavia). On March 23rd 1989 Milosevic destroyed its Autonomy with violence. On 1998-99 the war with Serbia breaks out, which on 10th of June 1999 ended (after NATO’s intervention), therefore installing the UNMIK Misssion and administration that even after the Declaration of Independence of Kosovo (17th February 2008). After UNMIK’s administration in Kosovo, the Law of the Criminal Procedure of ex-Yugoslavia was an applicable law. Its application was extended until the drafting and application of the Temporary Criminal Procedure Code of Kosovo (2004). The comparative methodology, written sources and different official raports are used to write this paper. The comparative data shows that with new Code, the authority of the Prosecution is empowered therefore weakening the role of the Court in the pretrial procedure, the number of the prescribed cases has risen and the discontent of the citizens also, towards the judicial system.

This paper discusses the application of the EU directive as a source of European private international law with an emphasis on the post-Lisbon period in private international law of the member states. After presenting the main features of a directive in private international law, such as the legal basis for those “measures” in secondary legislation, types of directive, their structure, purpose and the effects of a directive, the author points out the special importance of the directive expressed in the Ingmar and Unamar cases of the Court of Justice of the European Union. In both cases the legal framework was Council Directive 86/653/EEC of 18 December 1986 on the coordination of the laws of the Member States relating to self-employed commercial agents. In the Ingmar case of 2000, although lacking a (unilateral) conflict of law rule, the Court gave, by interpretation, the position of an unwritten (or hidden) conflict of law rule to a substantive law provision of the Directive. At the same time the Court determined that the provisions of Articles 17 to 19 are to be regarded as mandatory rules for the purposes of private international law. For the former EC legal order it was essential that a principal established in a non-member country (USA), whose commercial agent acts within the EC, cannot evade those provisions by freely choosing un-harmonized applicable law. In 2013 Court of Justice of the European Union was again asked to deal with Council Directive 86/653/EEC of 18 December 1986 but in the new Unamar case with parties from Bulgaria (principal) and Belgium (commercial agent). Again, the Court confirmed the mandatory character of Articles 17 and 18 of the Directive and applied also Art. 7(2) of the Rome Convention of 1980. In his ruling it took into consideration the provisions of Art. 9(1) of the Rome I Regulation in which there is a definition of overriding mandatory provisions. Taking into account the terms of the mandatory provisions, but this time also consistent with the wording of Article 9(1) of the Rome I Regulation of 2008, the Court concluded that the law chosen by the parties to a commercial agency contract may be rejected by the court of another Member State before which the case has been brought in favor of the law of the forum, owing to the mandatory nature in the legal order of that Member State, only if the court of the forum state held it to be crucial to grant the commercial agent protection, going beyond that provided for by the directive, thus taking account of the nature of such mandatory provisions. From June 1988 to today (2021) the EEC, the EC and the EU adopted a considerable number of directives as measures for the approximation of national law dealing mostly with consumer, but also employment and insurance issues, setting forth conflict rules. These sector-specific rules (or special conflict rules for certain (consumer) contracts) from the second-generation directives based on unilateral conflict rules prevail over the conflict rules of the Rome Convention of 1980 (Art. 20) and the Rome I Regulation of 2008 (Art. 23) in relation to particular matters, lay down conflict-of-law rules relating to contractual obligations. This situation creates a “labyrinth” of legal sources dealing with conflict-of-law rules on the national, (ex international) and on the European level. The described fragmentation of a situation where conflict-of-law rules are depressed among several instruments and where there are differences between those rules, contrary to Recital 40(1)-1) Rome I Regulation, has not been avoided. But at the same time the Rome I Regulation did not exclude the possibility of including conflict-of- rules with regard to particular matters (Recital 40(1-2) Rome I Regulation). At the end of this paper the author answered one additional question: How to solve the problem of the lack of coordination between the Rome I Regulation of 2008 and other provisions of EU law, including national laws implementing those acts? The first step may be to give a narrow interpretation of Art. 23 of the Rome I Regulation and to give precedence only to special EU conflict-of-law rules in relation to a particular matter. Stricto sensu it means, all provisions in the consumer directives which provide that, if a contract has a direct link to the territory of one or more Member States, EU law will apply, even if the parties have chosen the law of a third country, should not (always) be regarded as choice of law rules. Such a consideration has the potential to exclude the application of Art. 23 of the Rome I Regulation and rather apply Article 3(4) or 9(2) of Rome I. An example of such “conflict-of-law rule” is Article 22(4) of Consumer Credit Directive 2008/48 EC of 23 April 2008 on credit agreements for consumers (OJ EU L 133/66). The second step is to reopen the lost political battle from 2008 of the European Parliament for a general precedence of all EU internal market law. Thirteen years after Rome I was adopted we have some additional arguments in favor of applying the general principle of supremacy in EU law without breaching “the proper functioning of the internal market” (Recital 40(2) of the Rome I Regulation). The first argument is general, known as the process of communitarization. Its result is not just Rome I (without Article 23) but also Directive 2011/83/ EU of 25 October 2011 on consumer rights, which is a new legal act in the post-Lisbon period of the EUPIL and among consumer directives should be seen as lex posterior. It is not for the first time that in such kind of Directive there is no unilateral conflict rule with the aim to protect all EU values by applying EU law. But the relevant provision lays down that the consumer should not be deprived of the protection granted by that Directive, and that, where the law applicable to the contract is that of a third country, Regulation Rome I should apply in order to determine whether the consumer retains the protection granted by that Directive (Recital 58 of the Directive on consumer rights). Taking into consideration all above mentioned arguments, the author concludes: in the third decade of the 21st century the post-Lisbon legal practice regarding special EU conflict-of-law rules relating to particular matters contained in EU Directives on consumer protection should no longer prevail. The application of the Directives with or without a unilateral conflict rule in a situation with an international element should instead be safeguarded through the application of the provisions of Articles 3(4) and Art. 6(2) for consumer protection, and Article 9(2) of the Rome I Regulation of 2008 in order to determine whether the consumer retains the protection granted by that Directive.

When the personal data is reported through media, the Personal Information Protection Act(PIPA) should set forth standards for the extent to which this can be be permitted. In this article, I study a post-ex post legislative evaluation of the Personal Information Protection Act and to propose amendments. On Korean PIPA, Article 58, excludes Personal information collected or used for its own purposes of reporting by the press, only Chapters 3 to 7 of PIPA, so the provisions of Chapter 9(Supplemental Provisions) and Chapter 10(Penal Provisions) are all applied. Therefore, there is a problem that can be punished as a violation of the PIPA when the public reports for the public interest as well as media reports. Article 6 of the EU's GDPR (Lawfulness of processing) recognizes processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller(e). Article 85 stipulates that the Processing and freedom of expression and information should be balanced with the right to freedom of information, and that the application of Chapters 2 to 7 and 9 of the GDPR be excluded for journalism purposes. And the legality of processing in Article 8 of the UK Data Protection Act (2018) further elaborates this. Article 57 of the PIPA of Japan, excludes application, does not impose any obligations on personal information handling business operators for reporting purposes. In addition, the Japanese Public Interest Notified Person Protection Act requires the person making the public interest notification to submit a public interest notification to the Personal Information Protection Commission if there is a concern about violating the PIPA. In conclusion, on Korea's PIPA, it is necessary to stipulate that the PIPA is not applied in the case of public interest whistleblower. For this purpose, the provision of personal data should stipulate in Article 17 of the Amendment Act, “in case of reporting facts related to crime or facts related to crime for the purpose of public interest or reporting,”. and It is necessary to expand the exclusion of media coverage in the application exclusion rule of Article 58 to some punishment provisions, and to amend the direction to protect the public interest whistleblower protection law in the Public Interest Whistleblower Protection Act. At the same time, research should be continued so that relevant laws and regulations can present clear standards so that individual honor or privacy and public interest information can be guaranteed at the same time.

Abstract This article argues that the European Central Bank (ECB), supported by the Court of Justice of the European Union (CJEU), can be perceived to have functionally softened the no sovereign lender of last resort (LOLR) rule originally implied by Articles 123 and 125 of the Treaty on the Functioning of the European Union (TFEU) towards a rule-with-exceptions and, increasingly, towards a presumption: The ECB will act as sovereign LOLR to a constituent Member unless and until that Member is insolvent or unwilling to cooperate with measures designed to restore market confidence. This functional moderation of a rule, from an ex ante specification of an outcome towards the exercise of greater choice at the point of application, carries with it contentious normative questions. To motivate discussion thereof beyond a largely ahistorical, non-indexical, rules versus discretion debate, the rules of the currency union are located within the genealogy of international exchange rate regimes. The “convertibility” rule of the gold standard and the “parity” rule of the Bretton Woods system are contrasted with their Eurozone equivalent. A consequentialist standpoint is sketched out from which the interventions of the ECB, in light of their available alternatives, appear broadly consistent with welfarist cost-benefit analysis and less normatively worrisome than by reference to evaluative criteria that emphasize a narrowly rule-bound conception of the rule of law.

As uniform application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is required, courts are to review and look to foreign case law on the CISG, and more and more courts have referred to foreign case law. The trade volume in goods of Republic of Korea (‘Korea’) exceeded 1.4 trillion US Dollars in 2022 with taking 6th place in the world, and this leads to the necessity of understanding Korean case law on the CISG. This paper analyses the various legal issues in the Supreme Court of Korea’s 2022 decision on the CISG, and reviews the relevant provisions of the CISG and Korean law. The Korean court found that the CISG prevails over Korean civil or commercial law in international sales contracts governed by the CISG and Korean law, and also found that foreign law is treated as ‘de facto law’, not as ‘question of fact’ in Korea, and thus the courts must investigate its contents ex officio. Furthermore, it was affirmed that the Korean private international law admits ‘freedom of choice’ or ‘party autonomy’ in a contract, and adopts ‘the most closely connected test’ in the absence of choice of law in a contract. The Korean court also found that as the CISG does not deal with statutes of limitations, it is left to the applicable domestic law determined under the private international law of the forum. CISG, Governing law, Korean case law, International sales contract, party autonomy, the Supreme Court of Korea, Statute of limitations

The paper makes an attempt to identify the essence of the principle of ex officio investigation, which is considered common to administrative procedure and administrative proceedings. The authors set the task of analyzing not only the similar manifestations of this principle in the procedure and proceedings. An equally important for understanding the essence of the principle, and therefore the correct application of procedural and processual norms, is, according to the authors, to distinguish its different manifestations that cannot be ignored, because this principle forms the basis for the activities of representatives of various branches of power, namely executive and judicial. In order to perform the stated task, the paper analyzes among the rules of the Law of Ukraine "On Administrative Procedure" and the Code of Administrative Proceedings of Ukraine those that characterize the considered principle, it is demonstrated in comparison how the representatives of each branch of power use them. As a result, the paper states that the representatives of executive and judicial authorities, under the influence of the principle of ex officio investigation, demonstrate evident activity in proceedings: they are authorized to take actions on their own, without obtaining the consent of the interested parties, which guarantee that the decision made by them in the case will fully meet the requirements declared at the regulatory level. At the same time, such activity is ensured by norms formulated taking into account the nature of the activities of each of the subjects of power, and therefore, in its manifestations, it cannot be recognized as identical.

Abstract In the contracting States of the Convention on Contracts for the International Sale of Goods (CISG), where the CISG applies via its Article 1, the courts have a duty under public international law to apply its rules automatically, regardless of the parties’ awareness in this respect. At the same time, the parties have a subsequent autonomy based on Article 6 of the CISG to exclude the application of the Convention, which may be done expressly or by implication. Such an exclusion may take place at various stages of the parties’ legal relationship, including during legal proceedings. Due to the fact that the legal representatives are often not aware of the CISG’s existence and its potential automatic application to the given case, when a dispute arises, they may fail to plead or base their arguments on the basis of its applicable rules. This article focuses on the adjudicator’s duty to apply the CISG ex officio, together with the possibility and requirements regarding its exclusions made during legal proceedings, given the example of two recent Chinese cases. In this contribution, it is advocated that the failure by the parties’ representatives to plead and base their arguments during litigation over the applicable CISG rules is not a sufficient indication of their intention to exclude the Convention.

Photo by 187929822 © Victor Moussa | Dreamstime.com INTRODUCTION The nonconsensual taking of a human organ to use in transplantation medicine violates ethical principles, including autonomy, informed consent, and human rights, as well as criminal laws. When such an organ harvesting is not just nonconsensual, but performed in a way that causes a death or uses the pretense of brain death without meeting the criteria, it also violates the dead donor[1] rule.[2] The dead donor rule is both ethical and legal. It prevents organ retrieval that would predictably cause the death of the organ donor.[3] Retrieval of a vital organ is permissible only after a declaration of death.[4] Forced organ harvesting may breach the dead donor rule as it stands. A reimagined, broader dead donor rule could consider a larger timeframe in the forced organ harvesting context. In doing so, the broad dead donor rule could cover intent, premeditation, aiding and abetting, and due diligence failures. A broad definition of forced organ harvesting is ‘‘the removal of one or more organs from a person by means of coercion, abduction, deception, fraud, or abuse of power. . .’’[5] A more targeted definition is “[t]he killing of a person so that their organs may be removed without their free, voluntary and informed consent and transplanted into another person.”[6] In the global organ harvesting context, forced organ harvesting violates the World Health Organization (WHO) Guiding Principle 3, which says “live organ donors should be acting willingly, free of any undue influence or coercion.”[7] Furthermore, WHO states live donors should be “genetically, legally, or emotionally” attached to the recipient. Guiding Principle 1 applies to deceased donors, covers consent, and permits donation absent any known objections by the deceased.[8] Principle 7 says, “Physicians and other health professionals should not engage in transplantation procedures, and health insurers and other payers should not cover such procedures if the cells, tissues or organs concerned have been obtained through exploitation or coercion of, or payment to, the donor or the next of kin of a deceased donor.”[9] There are underground markets in which organ hunters prey on the local poor in countries with low wages and widespread poverty[10] and human trafficking that targets migrants for the purpose of organ harvesting.[11] This paper explores forced harvesting under the backdrop of the dead donor rule, arguing that a human rights violation so egregious requires holding even distant participants in the chain of events accountable. By interfering with resources necessary to carry out bad acts, legislation and corporate and institutional policies can act as powerful deterrents. A broader dead donor rule would highlight the premeditation and intent evidenced well before the act of organ retrieval. I. Background and Evidence In China, there is evidence that people incarcerated for religious beliefs and practices (Falun Gong) and ethnic minorities (Uyghurs) have been subjects of forced organ harvesting. A tribunal (the China Tribunal) found beyond a reasonable doubt that China engaged in forced organ harvesting.[12] Additionally, eight UN Special Rapporteurs found a system of subjecting political prisoners and prisoners of conscience to blood tests and radiological examinations to determine the fitness of their organs.[13] As early as 2006, investigators found evidence of forced organ harvesting from Falun Gong practitioners. [14] Over a million Uyghurs are in custody there, and there is ample evidence of biometric data collection.[15] An Uyghur tribunal found evidence of genocide.[16] “China is the only country in the world to have an industrial-scale organ trafficking practice that harvests organs from executed prisoners of conscience.”[17] Witnesses testified to the removal of organs from live people without ample anesthesia,[18] summonses to the execution grounds for organ removal,[19] methods of causing death for the purpose of organ procurement,[20] removing eyes from prisoners who were alive,[21] and forcing live prisoners into operating rooms.[22] The current extent of executions to harvest organs from prisoners of conscience in China is unknown. The Chinese press has suggested surgeons in China will perform 50,000 organ transplants this year.[23] Doctors Against Forced Organ Harvesting (DAFOR) concluded, “[f]orced organ harvesting from living people has occurred and continues to occur unabated in China.”[24] China continues to advertise in multiple languages to attract transplant tourists.[25] Wait times for organs seem to remain in the weeks.[26] In the United States, it is common to wait three to five years.[27] II. The Nascent System of Voluntary Organ Donation in China In China, throughout the 1990s and early 2000s, the supply of organs for transplant was low, and there was not a national system to register as a donor. A 1984 act permitted death row prisoners to donate organs.[28] In 2005, a Vice Minister acknowledged that 95 percent of all organ transplants used organs from death row prisoners.[29] In 2007 the planning of a voluntary system to harvest organs after cardiac death emerged. According to a Chinese publication, China adopted brain death criteria in 2013.[30] There had been public opposition due partly to cultural unfamiliarity with it.[31] Cultural values about death made it more difficult to adopt a universal brain death definition. Both Buddhist and Confucian beliefs contradicted brain death.[32] Circulatory death was traditionally culturally accepted.[33] The Ministry of Health announced that by 2015 organ harvesting would be purely voluntary and that prisoners would not be the source of organs.[34] There are cultural barriers to voluntary donation partly due to a Confucian belief that bodies return to ancestors intact and other cultural and religious beliefs about respect for the dead.[35] An emphasis on family and community over the individual posed another barrier to the Western approach to organ donation. Public awareness and insufficient healthcare professional knowledge about the process of organ donation are also barriers to voluntary donation.[36] Although the Chinese government claims its current system is voluntary and no longer exploits prisoners,[37] vast evidence contradicts the credibility of the voluntary transplant program in China.[38] III. Dead Donor Rule: A Source of Bioethical Debate It seems tedious to apply this ethical foundation to something as glaring as forced organ harvesting. But the dead donor rule is a widely held recognition that it is not right to kill one person to save another.[39] It acts as a prohibition on killing for the sake of organ retrieval and imposes a technical requirement which influences laws on how death is declared. The dead donor rule prevents organ harvesting that causes death by prohibiting harvesting any organ which the donor agreed to donate only after death prior to an official declaration of death. There is an ongoing ethical debate about the dead donor rule. Many in bioethics and transplant medicine would justify removing organs in specific situations prior to a declaration of death, abandoning the rule.[40] Some use utilitarian arguments to justify causing the death of someone who is unconscious and on life support irreversibly. Journal articles suggest that the discussion has moved to one of timing and organ retrieval.[41] Robert Truog and Franklin Miller are critics of the dead donor rule, arguing that, in practice, it is not strictly obeyed: removing organs while a brain-dead donor is still on mechanical ventilation and has a beating heart and removing organs right after life support is removed and cardio-pulmonary death is declared both might not truly meet the requirement of the dead donor rule, making following the rule “a dubious norm.”[42] Miller and Truog question the concept of brain death, citing evidence of whole body integrated functions that continue indefinitely. They challenge cardio-pulmonary death, asserting that the definition includes as dead, those who could be resuscitated. Their hearts could resume beating with medical intervention. Stopping life support causes death only in those whose lives are sustained by it. Some stipulate that the organ retrieval must not itself cause the death. Some would rejigger the cause of death: Daniel Callahan suggests that the underlying condition causes the death despite removal of life support.[43] But logically, a person could continue life support and be alive, so clearly, removing life support does cause death. Something else would have caused brain death or the circumstance that landed the person on mechanical ventilation. To be more accurate, one could say X caused the irreversible coma and removing life support caused the death itself. Miller and Truog take the position that because withdrawal of life support does cause death, the dead donor rule should be defunct as insincere. To them, retrieving vital organs from a technically alive donor should be permissible under limited conditions. They look to the autonomous choices of the donor or the surrogate (an autonomy-based argument). They appreciate the demand for organs and the ability to save lives, drawing attention to those in need of organs. Live donor organ retrieval arguably presents a slippery slope, especially if a potential donor is close to death, but not so close to label it imminent. They say physicians would not be obligated to follow the orders of a healthy person wishing to have vital organs removed, perhaps to save a close friend or relative. Similarly, Radcliffe-Richards, et al. argue that there is no reason to worry about the slippery slope of people choosing death so they can sell their vital organs, whether for money for their decedents or their creditors.[44] The movement toward permissibility and increased acceptance of medical aid in dying also influence the organ donation arena. The slippery slope toward the end of life has potential to become a realistic concern. Older adults or other people close to death may want to donate a vital organ, like their heart, to a young relative in need. That could greatly influence the timing of a decision to end one’s life. IV. Relating the Dead Donor Rule to Forced Organ Harvesting There is well documented evidence that in China organs have been removed before a declaration of death.[45] But one thing the dead donor rule does not explicitly cover is intent and the period prior to the events leading to death. It tends to apply to a near-death situation and is primarily studied in its relationship to organ donation. It is about death more than it is about life. Robertson and Lavee investigated data on transplantation of vital organs in China and they document cases where the declaration of death was a pretense, insincere, and incorrect. Their aim was to investigate whether the prisoners were in fact dead prior to organ harvesting.[46] (The China Tribunal found that organs have been removed from live prisoners and that organ harvesting has been the cause of death.) They are further concerned with the possible role of doctors as executioners, or at least as complicit in the execution as the organ harvesting so closely follows it. V. A Broader Dead Donor Rule A presumed ethical precursor to the dead donor rule may also be an important ethical extension of the rule: the dead donor rule must also prohibit killing a person who is not otherwise near death for the purpose of post-death organ harvesting. In China, extra-judicial killings of prisoners of conscience are premeditated ― there is ample evidence of blood tests and radiology to ensure organ compatibility and health.[47] To have effective ethical force, the dead donor rule should have an obvious application in preventing intentional killing for an organ retrieval, not just killing by way of organ retrieval. When we picture the dead donor rule, bioethicists tend to envision a person on life support who will either be taken off it and stop breathing or who will be declared brain dead. But the dead donor rule should apply to healthy people subject to persecution at the point when the perpetrator lays the ground for the later killing. At that point, many organizations and people may be complicit or unknowingly contributing to forced organ harvesting. In this iteration of the dead donor rule, complicity in its violations would be widespread. The dead donor rule could address the initial action of ordering a blood or radiology test or collecting any biometric data. Trained physicians and healthcare technicians perform such tests. Under my proposed stretch of the dead donor rule, they too would be complicit in the very early steps that eventually lead to killing a person for their organs. I argue these steps are part of forced organ harvesting and violate the dead donor rule. The donor is very much alive in the months and years preceding the killing. A conspiracy of indifference toward life, religious persecution, ethnic discrimination, a desire to expand organ transplant tourism, and intent to kill can violate this broader dead donor rule. The dead donor rule does not usually apply to the timing of the thought of organ removal, nor the beginning of the chain of events that leads to it. It is usually saved for the very detailed determination of what may count as death so that physicians may remove vital and other organs, with the consent of the donor.[48] But I argue that declaring death at the time of retrieval may not be enough. Contributing to the death, even by actions months or years in advance, matter too. Perhaps being on the deathbed awaiting a certain death must be distinguished from going about one’s business only to wind up a victim of forced organ harvesting. Both may well be declared dead before organ retrieval, but the likeness stops there. The person targeted for future organ retrieval to satisfy a growing transplant tourism business or local demand is unlike the altruistic person on his deathbed. While it may seem like the dead donor rule is merely a bioethics rule, it does inform the law. And it has ethical heft. It may be worth expanding it to the arena of human trafficking for the sake of organ removal and forced organ harvesting.[49] The dead donor rule is really meant to ensure that death was properly declared to protect life, something that must be protected from an earlier point. VI. Complicity: Meaning and Application Human rights due diligence refers to actions that people or institutions must take to ensure they are not contributing to a human rights violation. To advise on how to mitigate risk of involvement or contribution to human rights violations, Global Rights Compliance published an advisory that describes human rights due diligence as “[t]he proactive conduct of a medical institution and transplant-associated entity to identify and manage human rights risks and adverse human rights impacts along their entire value and supply chain.”[50] Many people and organizations enable forced organ harvesting. They may be unwittingly complicit or knowingly aiding and abetting criminal activity. For example, some suppliers of medical equipment and immunosuppressants may inadvertently contribute to human rights abuses in transplantation in China, or in other countries where organs were harvested without consent, under duress, or during human trafficking. According to Global Rights Compliance, “China in the first half of 2021 alone imported ‘a total value of about 24 billion U.S. dollars’ worth of medical technology equipment’, with the United States and Germany among the top import sources.”[51] The companies supplying the equipment may be able to slow or stop the harm by failing to supply necessary equipment and drugs. Internal due diligence policies would help companies analyze their suppliers and purchasers. Corporations, educational institutions, and other entities in the transplantation supply chain, medical education, insurance, or publishing must engage in human rights due diligence. The Global Rights Compliance advisory suggests that journals should not include any ill-gotten research. Laws should regulate corporations and target the supply chain also. All actors in the chain of supply, etc. are leading to the death of the nonconsenting victim. They are doing so while the victim is alive. The Stop Forced Organ Harvesting Act of 2023, pending in the United States, would hold any person or entity that “funds, sponsors, or otherwise facilitates forced organ harvesting or trafficking in persons for purposes of the removal of organs” responsible. The pending legislation states that: It shall be the policy of the United States—(1) to combat international trafficking in persons for purposes of the removal of organs;(2) to promote the establishment of voluntary organ donation systems with effective enforcement mechanisms in bilateral diplomatic meetings and in international health forums;(3) to promote the dignity and security of human life in accordance with the Universal Declaration of Human Rights, adopted on December 10, 1948; and(4) to hold accountable persons implicated, including members of the Chinese Communist Party, in forced organ harvesting and trafficking in persons for purposes of the removal of organs.[52] The Act calls on the President to provide Congress a list of such people or entities and to sanction them by property blocking, and, in the case of non-US citizens, passport and visa denial or revocation. The Act includes a reporting requirement under the Foreign Assistance Act of 1961 that includes an assessment of entities engaged in or supporting forced organ harvesting.[53] The law may have a meaningful impact on forced organ harvesting. Other countries have taken or are in the process of legal approaches as well.[54] Countries should consider legislation to prevent transplant tourism, criminalize complicity, and require human rights due diligence. An expanded dead donor rule supports legal and policy remedies to prevent enabling people to carry out forced organ harvesting. VII. Do Bioethicists Mention Human Rights Abuses and Forced Organ Harvesting Enough? As a field, bioethics literature often focuses on the need for more organs, the pain and suffering of those on organ transplant waitlists, and fairness in allocating organs or deciding who belongs on which waitlist and why. However, some bioethicists have drawn attention to forced organ harvesting in China. Notably, several articles noted the ethical breaches and called on academic journals to turn away articles on transplantation from China as they are based on the unethical practice of executing prisoners of conscience for their organs.[55] The call for such a boycott was originally published in a Lancet article in 2011.[56] There is some acknowledgement that China cares about how other countries perceive it,[57] which could lead to either improvements in human rights or cover-ups of violations. Ill-gotten research has long been in the bioethics purview with significant commentary on abuses in Tuskegee and the Holocaust.[58] Human research subjects are protected by the Declaration of Helsinki, which requires acting in the best interests of research subjects and informed consent among other protections.[59] The Declaration of Helsinki is directed at physicians and requires subjects enroll in medical research voluntarily. The Declaration does not explicitly cover other healthcare professionals, but its requirements are well accepted broadly in health care. CONCLUSION The dead donor rule in its current form really does not cover the life of a non-injured healthy person at an earlier point. If it could be reimagined, we could highlight the link between persecution for being a member of a group like Falun Gong practitioners or Uyghurs as the start of the process that leads to a nonconsensual organ retrieval whether after a proper declaration of death or not. It is obviously not ethically enough to ensure an execution is complete before the organs are harvested. It is abuse of the dead donor rule to have such a circumstance meet its ethical requirement. And obviously killing people for their beliefs or ethnicity (and extra-judicial killings generally) is not an ethically acceptable action for many reasons. The deaths are intentionally orchestrated, but people and companies who may have no knowledge of their role or the role of physicians they train or equipment they sell are enablers. An expanded dead donor rule helps highlight a longer timeframe and expanded scope of complicity. The organ perfusion equipment or pharmaceuticals manufactured in the United States today must not end up enabling forced organ harvesting. With an expanded ethical rule, the “donor is not dead” may become “the donor would not be dead if not for. . .” the host of illegal acts, arrests without cause, forced detention in labor camps, extra-judicial killings, lacking human rights due diligence, and inattention to this important topic. The expanded dead donor rule may also appeal to the bioethics community and justify more attention to laws and policies like the Stop Forced Organ Harvesting Act of 2023. - [1] The word “donor” in this paper describes any person from whom organs are retrieved regardless of compensation, force, or exploitation in keeping with the bioethics literature and the phrase “dead donor rule.” [2] Robertson, M.P., Lavee J. (2022). Execution by organ procurement: Breaching the dead donor rule in China. Am J Transplant, Vol.22,1804– 1812. doi:10.1111/ajt.16969. [3] Robertson, J. A. (1999). Delimiting the donor: the dead donor rule. Hastings Center Report, 29(6), 6-14. [4] Retrieval of non-vital organs which the donor consents to donate post-death (whether opt-in, opt-out, presumed, or explicit according to local law) also trigger the dead donor rule. [5] The Stop Forced Organ Harvesting Act of 2023, H.R. 1154, 118th Congress (2023), https://www.congress.gov/bill/118th-congress/house-bill/1154. [6] Do No Harm: Mitigating Human Rights Risks when Interacting with International Medical Institutions & Professionals in Transplantation Medicine, Global Rights Compliance, Legal Advisory Report, April 2022, https://globalrightscompliance.com/project/do-no-harm-policy-guidance-and-legal-advisory-report/. [7] WHO Guiding Principles on Human Cell, Tissue and Organ Transplantation, as endorsed by the sixty-third World Health Assembly in May 2010, in Resolution WHA63.22 https://apps.who.int/iris/bitstream/handle/10665/341814/WHO-HTP-EHT-CPR-2010.01-eng.pdf?sequence=1. [8] WHO Guiding Principles on Human Cell, Tissue and Organ Transplantation (2010). [9] WHO Guiding Principles on Human Cell, Tissue and Organ Transplantation (2010). [10] Promchertchoo, Pichayada (Oct. 19, 2019). Kidney for sale: Inside Philippines’ illegal organ trade. https://www.channelnewsasia.com/asia/kidney-for-sale-philippines-illegal-organ-trade-857551; Widodo, W. and Wiwik Utami (2021), The Causes of Indonesian People Selling Covered Kidneys from a Criminology and Economic Perspective: Analysis Based on Rational Choice Theory. European Journal of Political Science Studies, Vol 5, Issue 1. [11] Van Reisen, M., & Mawere, M. (Eds.). (2017). Human trafficking and trauma in the digital era: The ongoing tragedy of the trade in refugees from Eritrea. African Books Collective. [12] The Independent Tribunal into Forced Organ Harvesting from Prisoners of Conscience in China (China Tribunal) (2020). https://chinatribunal.com/wp-content/uploads/2020/03/ChinaTribunal_JUDGMENT_1stMarch_2020.pdf [13] UN Office of the High Commissioner, Press Release, China: UN human Rights experts alarmed by ‘organ harvesting’ allegations (UN OTHCHR, 14 June 2021), https://www.ohchr.org/en/press-releases/2021/06/china-un-human-rights-experts-alarmed-organ-harvesting-allegations. [14] David Matas and David Kilgour, Bloody Harvest. The killing of Falun Gong for their organs (Seraphim Editions 2009). [15] How China is crushing the Uyghurs, The Economist, video documentary, July 9, 2019, https://youtu.be/GRBcP5BrffI. [16] Uyghur Tribunal, Judgment (9 December 2021) (Uyghur Tribunal Judgment) para 1, https://uyghurtribunal.com/wp-content/uploads/2022/01/Uyghur-Tribunal-Judgment-9th-Dec-21.pdf. [17] Ali Iqbal and Aliya Khan, Killing prisoners for transplants: Forced organ harvesting in China, The Conversation Published: July 28, 2022. https://theconversation.com/killing-prisoners-for-transplants-forced-organ-harvesting-in-china-161999 [18] Testimony demonstrated surgeries to remove vital organs from live people, killing them, sometimes without ample anesthesia to prevent wakefulness and pain. China Tribunal (2020), p. 416-417. https://chinatribunal.com/wp-content/uploads/2020/03/ChinaTribunal_JUDGMENT_1stMarch_2020.pdf; Robertson MP, Lavee J. (2022), Execution by organ procurement: Breaching the dead donor rule in China. Am J Transplant, Vol.22,1804– 1812. doi:10.1111/ajt.16969. [19] Doctors reported being summoned to execution grounds and told to harvest organs amid uncertainty that the prisoner was in fact dead. China Tribunal (2020), p. 52-53. [20]In testimony to the China Tribunal, Dr. Huige Li noted four methods of organ harvesting from live prisoners: incomplete execution by shooting, after lethal injection prior to death, execution by removal of the heart, and after a determination of brain death prior to an intubation (pretense of brain death). China Tribunal (2020), pp. 54-55. https://chinatribunal.com/wp-content/uploads/2020/03/ChinaTribunal_JUDGMENT_1stMarch_2020.pdf [21] A former military medical student described removing organs from a live prisoner in the late 1990s. He further described his inability to remove the eyes of a live man and his witnessing another doctor forcefully remove the man’s eyes. China Tribunal (2020), p. 330. [22] In 2006, a nurse testified that her ex-husband, a surgeon, removed the eyes of 2,000 Falun Gong practitioners in one hospital between 2001 and 2003. She described the Falun Gong labor-camp prisoners as being forced into operating rooms where they were given a shot to stop their hearts. Other doctors removed other organs. DAFOH Special Report, 2022. https://epochpage.com/wp-content/uploads/sites/3/2022/12/DAFOH-Special-Report-2022.pdf [23] Robertson MP, Lavee J. (2022), Execution by organ procurement: Breaching the dead donor rule in China. Am J Transplant, Vol.22,1804– 1812. doi:10.1111/ajt.16969. [24] DAFOH Special Report, 2022. https://epochpage.com/wp-content/uploads/sites/3/2022/12/DAFOH-Special-Report-2022.pdf; DAFOH’s physicians were nominated for a Nobel Prize for their work to stop forced organ harvesting. Šućur, A., & Gajović, S. (2016). Nobel Peace Prize nomination for Doctors Against Forced Organ Harvesting (DAFOH) - a recognition of upholding ethical practices in medicine. Croatian medical journal, 57(3), 219–222. https://doi.org/10.3325/cmj.2016.57.219 [25] Robertson and Lavee (2022). [26] Stop Organ Harvesting in China, website (organization of the Falun Dafa). https://www.stoporganharvesting.org/short-waiting-times/ [27] National Kidney Foundation, The Kidney Transplant Waitlist – What You Need to Know, https://www.kidney.org/atoz/content/transplant-waitlist [28] Wu, Y., Elliott, R., Li, L., Yang, T., Bai, Y., & Ma, W. (2018). Cadaveric organ donation in China: a crossroads for ethics and sociocultural factors. Medicine, 97(10). [29] Wu, Elliott, et al., (2018). [30] Su, Y. Y., Chen, W. B., Liu, G., Fan, L. L., Zhang, Y., Ye, H., ... & Jiang, M. D. (2018). An investigation and suggestions for the improvement of brain death determination in China. Chinese Medical Journal, 131(24), 2910-2914. [31] Huang, J., Millis, J. M., Mao, Y., Millis, M. A., Sang, X., & Zhong, S. (2012). A pilot programme of organ donation after cardiac death in China. The Lancet, 379(9818), 862-865. [32] Yang, Q., & Miller, G. (2015). East–west differences in perception of brain death: Review of history, current understandings, and directions for future research. Journal of bioethical inquiry, 12, 211-225. [33] Huang, J., Millis, J. M., Mao, Y., Millis, M. A., Sang, X., & Zhong, S. (2015). Voluntary organ donation system adapted to Chinese cultural values and social reality. Liver Transplantation, 21(4), 419-422. [34] Huang, Millis, et al. (2015). [35] Wu, X., & Fang, Q. (2013). Financial compensation for deceased organ donation in China. Journal of Medical Ethics, 39(6), 378-379. [36] An, N., Shi, Y., Jiang, Y., & Zhao, L. (2016). Organ donation in China: the major progress and the continuing problem. Journal of biomedical research, 30(2), 81. [37] Shi, B. Y., Liu, Z. J., & Yu, T. (2020). Development of the organ donation and transplantation system in China. Chinese medical journal, 133(07), 760-765. [38] Robertson, M. P., Hinde, R. L., & Lavee, J. (2019). Analysis of official deceased organ donation data casts doubt on the credibility of China’s organ transplant reform. BMC Medical Ethics, 20(1), 1-20. [39] Miller, F.G. and Sade, R. M. (2014). Consequences of the Dead Donor Rule. The Annals of thoracic surgery, 97(4), 1131–1132. https://doi.org/10.1016/j.athoracsur.2014.01.003 [40] For example, Miller and Sade (2014) and Miller and Truog (2008). [41] Omelianchuk, A. How (not) to think of the ‘dead-donor’ rule. Theor Med Bioeth 39, 1–25 (2018). https://doi-org.ezproxy.cul.columbia.edu/10.1007/s11017-018-9432-5 [42] Miller, F.G. and Truog, R.D. (2008), Rethinking the Ethics of Vital Organ Donations. Hastings Center Report. 38: 38-46. [43] Miller and Truog, (2008), p. 40, citing Callahan, D., The Troubled Dream of Life, p. 77. [44] Radcliffe-Richards, J., Daar, A.S., Guttman, R.D., Hoffenberg, R., Kennedy, I., Lock, M., Sells, R.A., Tilney, N. (1998), The Case for Allowing Kidney Sales, The Lancet, Vol 351, p. 279. (Authored by members of the International Forum for Transplant Ethics.) [45] Robertson and Lavee, (2022). [46] Robertson and Lavee, (2022). [47] China Tribunal (2020). [48] Consent varies by local law and may be explicit or presumed and use an opt-in or opt-out system and may or may not require the signoff by a close family member. [49] Bain, Christina, Mari, Joseph. June 26, 2018, Organ Trafficking: The Unseen Form of Human Trafficking, ACAMS Today, https://www.acamstoday.org/organ-trafficking-the-unseen-form-of-human-trafficking/; Stammers, T. (2022), "2: Organ trafficking: a neglected aspect of modern slavery", Modern Slavery and Human Trafficking, Bristol, UK: Policy Press. https://bristoluniversitypressdigital.com/view/book/978144736. [50] Do No Harm: Mitigating Human Rights Risks when Interacting with International Medical Institutions & Professionals in Transplantation Medicine, Global Rights Compliance, Legal Advisory Report, April 2022, https://globalrightscompliance.com/project/do-no-harm-policy-guidance-and-legal-advisory-report/. [51] Global Rights Compliance, p. 22. [52] The Stop Forced Organ Harvesting Act of 2023, H.R. 1154, 118th Congress (2023). https://www.congress.gov/bill/118th-congress/house-bill/1154. [53] The Stop Forced Organ Harvesting Act of 2023, H.R. 1154, 118th Congress (2023), https://www.congress.gov/bill/118th-congress/house-bill/1154. [54] Global Rights Compliance notes that Belgium, France (passed law on human rights due diligence in the value supply chain), United Kingdom, United States, Canada, Australia, and New Zealand have legal approaches, resolutions, and pending laws. p. 45. [55] For example, Caplan, A.L. (2020), The ethics of the unmentionable Journal of Medical Ethics 2020;46:687-688. [56] Caplan, A.L. , Danovitch, G., Shapiro M., et al. (2011) Time for a boycott of Chinese science and medicine pertaining to organ transplantation. Lancet, 378(9798):1218. doi:10.1016/S0140-6736(11)61536-5 [57] Robertson and Lavee. [58] Smolin, D. M. (2011). The Tuskegee syphilis experiment, social change, and the future of bioethics. Faulkner L. Rev., 3, 229; Gallin, S., & Bedzow, I. (2020). Holocaust as an inflection point in the development of bioethics and research ethics. Handbook of research ethics and scientific integrity, 1071-1090. [59] World Medical Association Declaration of Helsinki: Ethical Principles for Medical Research Involving Human Subjects, adopted by the 18th WMA General Assembly, Helsinki, Finland, June 1964, and amended multiple times, most recently by the 64th WMA General Assembly, Fortaleza, Brazil, October 2013. https://www.wma.net/policies-post/wma-declaration-of-helsinki-ethical-principles-for-medical-research-involving-human-subjects/

Introduction Curation-related discourses have become widespread. The growing public profile of curators, the emergence of new curation-related discourses and their proliferation beyond the confines of museums, particularly on social media, have led some to conclude that we now live in an age of curation (Buskirk cited in Synder). Curation is commonly understood in instrumentalist terms as the evaluation, selection and presentation of artefacts around a central theme or motif (see O’Neill; Synder). However, there is a growing academic interest in what underlies the shifting discourses and practices. Many are asking what do these changes mean (Martinon) now that “the curatorial turn” has positioned curation as a legitimate object of academic study (O’Neill). This article locates an exploration of the curatorial turn in journalism studies since 2010 within the shifting meanings of curation from antiquity to the digital age. It argues that the industry is facing a Foucauldian moment where the changing political economy of news and the proliferation of user-generated content on social media have disrupted the monopolies traditional news media held over the circulation of knowledge of current affairs and the power this gave them to shape public debate. The disruptions are profound, prompting a rethinking of journalism (Peters and Broersma; Schudson). However, debates have polarised between those who view news curation as symptomatic of the demise of journalism and others who see it as part of a wider revival of the profession, freed from monopolistic institutions to circulate a wider array of knowledge and viewpoints (see Picard). This article eschews such polarisations and instead draws on Robert Picard’s argument that journalism is in transition and that journalism, as a set of professional practices, is adapting to the age of curation but that those traditional news providers that fail to adapt will most likely decline. However, Picard’s approach does not address the definitional problem as to what distinguishes news curating from other journalistic practices when the commonly used instrumental definition can apply to editing. This article aims to negotiate this problem by addressing some of the conceptual ambiguities that arise from wholly instrumental notions of news curation. From “Cura” to the Curatorial Turn and the Age of Curation Modern instrumentalist definitions are necessary but not sufficient for an exploration of the curatorial turn in journalism. Tracing the meanings of curation over time facilitates an expansion of the instrumental to include metaphoric conceptualisations. The term originated in a Latin allegory about a mythological figure, personified as the “cura”, translated literally as care or concern, and who created human beings from the clay of the earth. Having created the human, the cura was charged by the gods with the lifelong care of the human (Reich) and at the same time became a symbol of curiosity and creativity (see Nowotny). “Curators” first emerged in Imperial Rome to denote a public officer charged with maintaining order and the emperor’s finances (Nowotny) but by the fourteenth century the meaning had shifted to that of religious officer charged with the care of souls (Gaskill). At this point the metaphorical associations of creativity and curiosity subsided. Six hundred years later souls had been replaced by artefacts valorised because of their contribution to human knowledge or as a testament to exceptional human creativity (Nowotny). Objects of curiosity and originality, as well as their creators, were reified and curation became the specialist practice of an expert custodian charged with the care and preservation of artefacts but relegated to the background to collect, evaluate and archive artefacts entrusted to the care of museums and to be preserved for future generations. Instrumentalist meanings thus dominated. From the 1960s discourses shifted again from the privileging of a “producer who actually creates the object in its materiality” to an entire set of actors (Bourdieu 261). These shifts were part of the changing political economy of museums, the growing prevalence of exhibitions and the emergence of mega-exhibitions hosted in global cities and capable of attracting massive audiences (see O’Neill). The curator was no longer seen merely as a custodian but able to add cultural value to artefacts when drawing individual items together into a collection, interpreting their relevance to a theme then re-presenting them through a story or visuals (see O’Neill). The verb “to curate”, which had first entered the English lexicon in the early 1900s but was used sporadically (Synder), proliferated from the 1960s in museum studies (Farquharson cited in O’Neill) as mega-exhibitions attracted publicity and the higher profile of curators attracted the attention of intellectuals prompting a curatorial turn in museum studies. The curatorial turn in museum studies from the 1980s marks the emergence of curation as a legitimate object of academic enquiry. O’Neill identified a “Foucauldian moment” in museum studies where shifting discourses signified challenges to, and disruptions of, traditional forms of knowledge-based power. Curation was no longer seen as a neutral activity of preservation, but one located within a contested political economy and invested with contradictions and complexities. Philosophers such as Martinon and Nowotny have highlighted the impossibility of separating the oversight of valuable artefacts from the processes by which these are selected, valorised and signified and what, at times, has been the controversial appropriation of creative outputs. Thus, a new critical approach emerged. Recently, curating-related discourses have expanded beyond the “rarefied” world of museum studies (Synder). Social media platforms have facilitated the proliferation of user-generated content offering a vast array of new artefacts. Information circulates widely and new discourses can challenge traditional bases of knowledge. Audiences now actively search for new material driven in part by curiosity and a growing distrust of the professions and establishments (see Holmberg). The boundaries between professionals and lay people are blurring and, some argue, knowledge is being democratized (see Ibrahim; Holmberg). However, as new information becomes voluminous, alternative truths, misinformation and false information compete for attention and there is a growing demand for the verification, selection and presentation of artefacts, that is online curation (Picard; Bakker). Thus, the appropriation of social media is disrupting traditional power relations but also offering new opportunities for new information-related practices. Journalism is facing its own Foucauldian moment. A Foucauldian Moment in Journalism Studies Journalism has been traditionally understood as capturing today’s happenings, verifying the facts of an event, then presenting these as a narrative that reporters update as news unfolds. News has been seen as the preserve of professionals trained to interview eyewitnesses or experts, to verify facts and to compile what they found into a compelling narrative (Hallin and Mancini). News-gathering was typically the work of an individual tasked with collecting stand-alone stories then passing them onto editors to evaluate, select, prioritise and collate these into a collection that formed a newspaper or news programme . This understanding of journalism emerged from the 1830s along with a type of news that was accessible, that large numbers of people wanted to read and that, consequently, attracted advertising making news profitable (Park). The idea that presumed trained journalists were best placed to produce news appeared first in the UK and USA then spread worldwide (Hallin and Mancini). At the same time as there was growing demand for news, space constraints restricted how much could be published and the high costs of production served as a barrier to entry first in print then later in broadcast media (Picard; Curran and Seaton). The large news organisations that employed these professionals were thus able to control the circulation of information and knowledge they generated and the editors that selected content were able, in part, to shape public debates (Picard; Habermas). Social media challenge the control traditional media have had over the production and dissemination of news since the mid-1800s. Practically every major global news story in 2010 and 2011 from natural disasters to uprisings was broken by ordinary people on social media (Bruns and Highfield). Twitter facilitates a steady stream of updates at an almost real-time speed that 24-hour news channels cannot match. Facebook, Instagram and blogs add commentary, context, visuals and personal stories to breaking news. Experts and official sources routinely post announcements on social media platforms enabling anyone to access much of the same source material that previously was the preserve of reporters. Investigations by bloggers have exposed abuses of power by companies and governments that journalists on traditional media have failed to (Wischnowski). Audiences and advertisers are migrating away from traditional newspapers to a range of different online platforms. News consumers now actively use search engines to find available information of interest and look for efficient ways of sifting through the proliferation of the useful and the dubious, the revelatory and the misleading or inaccurate (see Picard). That is, news organisations and the professional journalists they employ are increasingly operating in a hyper-competitive (see Picard) and hyper-sceptical environment. This paper posits that cumulatively these are disrupting the control news organisations have and journalism is facing a Foucauldian moment when shifting discourses signify a disturbance of the intellectual rules that shape who and what knowledge of news is produced and hence the power relations they sustain. Social media not only challenge the core news business of reporting, they also present new opportunities. Some traditional organisations have responded by adding new activities to their repertoire of practices. In 2011, the Guardian uploaded its entire database of the expense claims of British MPs onto its Website and invited readers to select, evaluate and comment on entries, a form of crowd-sourced curating. Andy Carvin, while at National Public Radio (NPR) built an international reputation from his curation of breaking news, opinion and commentary on Twitter as Syria became too dangerous for foreign correspondents to enter. New types of press agencies such as Storyful have emerged around a curatorial business model that aggregates information culled from social media and uses journalists to evaluate and repackage them as news stories that are sold onto traditional news media around the world (Guerrini). Research into the growing market for such skills in the Netherlands found more advertisements for “news curators” than for “traditional reporters” (Bakker). At the same time, organic and spontaneous curation can emerge out of Twitter and Facebook communities that is capable of challenging news reporting by traditional media (Lewis and Westlund). Curation has become a common refrain attracting the attention of academics. A Curatorial Turn in Journalism The curatorial turn in journalism studies is manifest in the growing academic attention to curation-related discourses and practices. A review of four academic journals in the field, Journalism, Journalism Studies, Journalism Practice, and Digital Journalism found the first mention of journalism and curation emerged in 2010 with references in nearly 40 articles by July 2015. The meta-analysis that follows draws on this corpus. The consensus is that traditional business models based on mass circulation and advertising are failing partly because of the proliferation of alternative sources of information and the migration of readers in search of it. While some of this alternative content is credible, much is dubious and the sheer volume of information makes it difficult to discern what to believe. It is unsurprising, then, that there is a growing demand for “new types and practices of curation and information vetting” that attest to “the veracity and accuracy of content” particularly of news (Picard 280). However, academics disagree on whether new information practices such as curation are replacing or supplementing traditional newsgathering. Some look for evidence of displacement in the expansion of job advertisements for news curators relative to those for traditional reporters (Bakker). Others look at how new and traditional practices co-exist in organisations like the BBC, Guardian and NPR, sometimes clashing and sometimes collaborating in the co-creation of content (McQuail cited in Fahy and Nisbet; Hermida and Thurman). The debate has polarised between whether these changes signify the “twilight years of journalism or a new dawn” (Picard). Optimists view the proliferation of alternative sources of information as breaking the control traditional organisations held over news production, exposing their ideological biases and disrupting their traditional knowledge-based power and practices (see Hermida; Siapera, Papadopoulou, and Archontakis; Compton and Benedetti). Others have focused on the loss of “traditional” permanent journalistic jobs (see Schwalbe, Silcock, and Candello; Spaulding) with the implication that traditional forms of professional practice are in demise. Picard rejects this polarisation, counter-arguing that much analysis implicitly conflates journalism as a practice with the news organisations that have traditionally hosted it. Journalists may or may not be located within a traditional media organisation and social media is offering numerous opportunities for them to operate independently and for new types of hybrid practices and organisations such as Storyful to emerge outside of traditional operations. Picard argues that making the most of the opportunities social media presents is revitalising the profession offering a new dawn but that those traditional organisations that fail to adapt to the new media landscape and new practices are in their twilight years and likely to decline. These divergences, he argues, highlight a profession and industry in transition from an old order to a new one (Picard). This notion of journalism in transition usefully negotiates confusion over what curation in the social media age means for news providers but it does not address the uncertainty as to where it sits in relation to journalism. Futuristic accounts predict that journalists will become “managers of content rather than simply sourcing one story next to another” and that roles will shift from reporting to curation (Montgomery cited in Bakker; see Fahy and Nisbet). Others insist curators are not journalists but “information workers” or “gatecheckers” (McQuail 2013 cited in Bakker; Schwalbe, Silcock, and Candello) thereby differentiating the professional from the manual worker and reinforcing the historic elitism of the professions by implying curation is a lesser practice. However, such demarcation is problematic in that arguably both journalist and news curator can be seen as information workers and the instrumental definition outlined at the beginning of this article is as relevant to curation as it is to news editing. It is therefore necessary to revisit commonly used definitions (see Bakker; Guerrini; Synder). The literature broadly defines content creation, including news reporting, as the generation of original content that is distinguishable from aggregation and curation, both of which entail working with existing material. News aggregation is the automated use of computer algorithms to find and collect existing content relevant to a specified subject followed by the generation of a list or image gallery (Bakker; Synder). While aggregators may help with the collection component of news curation, the practices differ in their relation to technology. Apart from the upfront human design of the original algorithm, aggregation is wholly machine-driven while modern news curation adds human intervention to the technological processes of aggregation (Bakker). This intervention is conscious rather than automated, active rather than passive. It brings to bear human knowledge, expertise and interpretation to verify and evaluate content, filter and select artefacts based on their perceived quality and relevance for a particular topic or theme then re-present them in an accessible form as a narrative or infographics or both. While it does not involve the generation of original news content in the way news reporting does, curation is more than the collation of information. It can also involve the re-presenting of it in imaginative ways, the re-formulating of existing content in new configurations. In this sense, curation can constitute a form of creativity increasingly common in the social media age, that of re-mixing and re-imagining of existing material to create something novel (Navas and Gallagher). The distinction, therefore, between content creation and content curation lies primarily in the relation to original material and not the assumed presence or otherwise of creativity. In addition, curation outputs need not stand apart from news reports. They can serve to contextualize news in ways that short reports cannot while the latter provides original content to sit alongside curated materials. Thus the two types of news-related practices can complement rather than compete with each other. While this addresses the relation between reporting and curation, it does not clarify the relation between curating and editing. Bakker eludes to this when he argues curating also involves “editing … enriching or combining content from different sources” (599). But teasing out the distinctions is tricky because editing encompasses a wide range of sub-specialisations and divergent duties. Broadly speaking, editors are “newsrooms professionals … with decision-making authority over content and structure” who evaluate, verify and select information so are “quality controllers” in newsrooms (Stepp). This conceptualization overlaps with the instrumentalist definition of curation and while the broad type of skills and tasks involved are similar, the two are not synonymous. Editors tends to be relatively experienced professionals who have worked up the newsroom ranks whereas news curators are often new entrants ultimately answerable to editors. Furthermore, curation in the social media age involves voluminous material that curators sift through as part of first level content collection and it involves ever more complex verification processes as digital technologies make it increasingly easy to alter and falsify information and images. The quality control role of curators may also involve in-house specialists or junior staff working with external experts in a particular region or specialisation (Fahy and Nisbett). Some of job advertisements suggest a growing demand for specialist curatorial skills and position these alongside other newsroom professionals (Bakker). Whether this means they are journalists is still open to question. Conclusion This article has presented a more expansive conceptualisation of news curation than is commonly used in journalism studies, by including both the instrumental and the symbolic dimensions of a proliferating practice. It also sought to avoid confining this wider conceptualisation within unhelpful polarisations as to whether news curation is symbolic of a wider demise or revival of journalism by distinguishing the profession from the organisation in which it operates. The article was then free to negotiate the conceptual ambiguity surrounding the often taken-for-granted instrumental meanings of curation. It argues that what distinguishes news curation from traditional newsgathering is the relationship to original content. While the reporter generates the journalistic equivalent of original content in the form of news, the imaginative curator re-mixes and re-presents existing content in potentially novel ways. This has faint echoes of the mythological cura creating something new from the existing clay. The other conceptual ambiguity negotiated was in the definitional overlaps between curating and editing. On the one hand, this questions the appropriateness of reducing the news curator to the status of an “information worker”, a manual labourer rather than a professional. On the other hand, it positions news curators as one of many types of newsroom professionals. 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