The international community embraces presence of laws that protect peoples ideas, patents, copyrights trade secrets and plagiarism trademarks. Egypt and Canada are not an exception to these laws and are also bound to register the applications by their citizens protecting their intellectual properties against people who may use them to benefit themselves economically.
Unlike Egypt, the government of Canada developed rules pertaining the protection of intellectual property in 1985; this was seven years prior to formulation of laws dealing with intellectual property in Egypt. In both these countries, protection of patents is similar in reference to the period a patent lasts.
A patent lasts 20 years after application after which it is let out to the general public and anyone who wishes to use that work to benefit publicly can do so (Kaphahn, 2009). However, registration in Canada for a patent requires the patent holder to prove that the patent has three characteristics. For one, the work must be a novel. The focus here is on the detail of the invention in question and the seriousness it contains.
The patent should also not be obvious. Special skills are needed to create the object or the thing that needs to be patent, and anything that anyone can come up with cannot be patented. Finally, the thing that is to be awarded a patent needs to have utility. The basic meaning of this is that that thing needs to be able to satisfy a want (Zvulony, 2002).
Copyright registration in these two countries protects the reputation as well as the good will that is attached to the products or the services that are being offered. However, though there is full protection of the goods or services provided, a clause that allows usage of part of the work exists (Kaphahn, 2009). For example, a book a fair dealing clause is in provision. It allows people to partially use the original work and it entirely falls on education bases.
The positioning of these two countries geographically provides an almost similar ways of transport. The main means of transport in these two countries is by road, by rail by water and by air. However, there is a big difference when it comes to the quality of the services in provision in the countries.
When it comes to the road network, Egypt has a notably badly maintained network, while the same cannot be said about the road network in Canada. There was massive investment in the road network after the Second World War in Canada. Due to the fact that it is one of the most competitive means of transport in Canada, especially in short distance, it is well maintained. Development of air transport is also very different countries.
While Egypt may have three major air ports, Canada on the other hand has a staggering 515 airports. The rail network is also available in these two countries. Notable about these two countries in reference to the rail transport is the fact that it is not a common means of transport and is mainly used in transporting of commodities and goods to different regions.
However, the rail network in Canada in more developed than the one in Egypt, which is even aging. The two countries also have water transport as part of their transport systems. The networks in these two regions are found in their big rivers as well as the lakes found in the countries.
As earlier noted, the two countries enjoy transportation of both people and products within and outside their borders. When it comes to transportation of cargo goods in and outside these two countries as a requirement there needs to be an insurance cover that is meant to compensate for any perils that occur during transportation. Each mode of transport has its own insurance coverage that covers any risk that may come about.
The premiums that are paid to these insurance companies are to the respect of the risk that is likely to be encountered when goods are in transit. However, variable and precious goods or jewelry have their portion of premium, which is notably higher than any of the other goods that are covered about by the insurance policy.
The distance that needs to be covered while transporting the cargo in question is also a big contributor to the amount of premium that needs to be paid to the insurance companies. Furthermore, the authorities in these two countries have a provision that is meant to bid those companies that are involved in transportation to ensure that they confirm their transit carriers, so as to avoid any complications in terms of payment, in case there is occurrence of risks.
Egypt and Canada share similarities when it comes to matters of Trade documentation requirements. Such similarities are evident when it comes to releasing of goods from the custom department. Certain documents need to be there for the goods to be released from the ports. Among these documents is the bill of landing.
The information that is contained in this document should be such that it should be corresponding to other documents like the invoices and the way the goods are packaged. Certificate of origin also forms the other type of document that need to be present before the imports are released from the ports (Zaki, 2005).
The importance of the certificate of origin is to ensure that certain information is contained. Among the type of information that may be contained include the following: the weight of the goods in question, the full address of the country and the company that manufactures the goods. Similarity in these two countries extend even when it comes to exportation of the goods.
An export card is required in both countries, which is issued by the ministry that is concerned with imports and exports, for example the ministry of industries when it comes to Egypt. Taxation card is also a requirement when it comes to the two countries. The importance of this card is to ensure that taxation is carried out for any imports brought about in the country and the right amount charged. Other trading documents needed when carrying out trading in these countries is the insurance certificate.
Both countries highlight on the importance of having insurance, especially when it comes to importers (Porter, 2011). Pro-Forma invoice is also important and a requirement, and comes in four copies. Among the contents is the country that the goods originated from the quantity, as well as the price charged on the goods. The type of commodity that is being traded as well as value of the commodity in foreign currency is also a requirement.
However, there is a difference on the way valuables are treated in both countries. While not special attention is paid to them in Canada, Egypt has such a policy that highlight on the importance of stating valuables like jewelry and electronics. In fact, failure to do so may lead to a scenario where the valuables may be confiscated awaiting charges on why the goods were not stated.
Regulations regarding foods are also common in the two countries. The policies are put in place in protection of health matters. Such policies are put into place to ensure that there is no food that is advertised or sold to the general public, which is poisonous in nature or in case it contains harmful components.
Foods that are manufactured or packaged in facilities that are not sanitary friendly are also not fit for advertisement, and selling the same to people is prohibited. Agricultural chemicals are necessary for growth of some of the agricultural products, which further constitutes food. However, both countries highlight on the importance of ensuring that the set standards on the maximum number of chemicals food products should contained is maintained.
The standards that the chemicals used in agricultural food products should be contained are set out by the authorities and should be limited to a certain maximum level. Further, the two countries share opinions when it comes to advertising and provision of foods, which are packaged in such a way that they cause misleading impressions to the general public. Misleading information in this case is inclusive of erroneous values, quantity and the components of the products.
The laws are also similar to the ones concerning foods when it comes to drugs. Any misleading and deceptive information is discouraged and there are laws put in place to ensure that such does not happen. Deceptive information includes information that gives untrue information about the value of the drugs, the components of the drugs as well as the safety standards incorporated in manufacturing of the products.
Drugs that are also packaged in a sanitary unpleasant area and drugs that are unpackaged in a sanitary unpleasant area are also prohibited from being sold in both the countries. Packaging as well as advertising of drugs that do not meet the standard set out by the authorities is also prohibited in these two countries.
The laws of the two countries also against any advertising that is meant to cause a mistake of the substances that are used in the manufacture of these drugs.
Sanitary conditions are also required to be observed when packaging these drugs, and if these drugs have been packaged in conditions that do not meet these drugs, then they are not presumed fit to be advertised, leave alone being sold for consumptions. Distribution of drugs that are meant to be samples is not also allowed in any of these countries, as it is required that the right standards for the drugs should be there for them to qualify to be sold or advertised.
The government of the day is an important player when it comes to protection of the consumers of the product that are put in the market by the various firms and organizations in the country. Egypt and Canada are also actively involved in ensuring that the consumers of the products produced locally or imported are protected against from producers and manufacturers who are not genuine in offering their products.
The laws put into place also ensure that the individuals who come across such products report in case they come across such manufacturers. In addition, there is need to ensure that incidents that lead to death or serious incidents get reported to the government to ensure that information is used to promote safety. Further, testing is important in both countries to ensure that only products that fit the set standards are traded.
The two countries also have hard fines and penalties to individuals who fail to comply with the laws set by the authorities (Antario, 2011). The aim of having these fines is to ensure that manufactures abide to the laws laid down, and put the acts set aside as priorities in manufacturing of the goods. Labeling of products should be such that it conforms to the laws that are put across.
Labeling of products which do not fit the standards is forbidden and there is need to ensure that only products of good quality are put in the market for consumption (Antario, 2011). The language that is used is advertising products that are meant for use by general public should be free of errors and should also not be misleading.
Erroneous messages when it comes to advertising are considered breach of laws that ensure there is protection of consumers of the products. In both countries, English is a language that is used to advertise. However, the case is different when it comes to Egypt as Arabic is incorporated in both communicating and advertising the products in the market. The same language is used in defining the rules that concerns protection of the customers.
Several countries practice robust environmental management strategies. There is an urgent need to observe global environmental sustainability. Several protocols and treaties advocate for environmental conservation. This trend is presently notable within the global context. Generally, a higher level of economic development is vital. This is because it results into the advancement of the human life standards (Lye 2009, p. 11).
Sustainable development caters for the welfare of future generations. Therefore, economic performance is pertinent to environmental welfare. These include some of the considerations under the carbon tax principle in Australia. There is an eminent rise in the level of global carbon production. This contributes to the increased rate of global warming. There are diverse debates concerning the challenge of global warming.
Countries perceived as main perpetrators undergo a lot pressure. Most protocols advocate for the adoption of strategic approaches to ensure cutbacks in the rates of emission. Australia is an example of a nation with robust mitigation policies on carbon reduction. Several economic and political implications ensue from this noble policy. The policy influences most operations within important economic sectors.
These include human resource, industrial sectors, and most business organizations (Serret & Johnstone 2006, p. 21). There are notable economic and environmental impacts of the policy. These are observable within the local and global scenario. This paper discusses the economic justification of carbon tax in Australia. The paper draws potential theoretical frameworks from economic and environmental disciplines. The discussion focuses on the economic patterns within Australia.
Economic Justification of the Carbon Tax
There are several debates concerning the issue of carbon tax in Australia. The policy has notable impacts on environmental and other economic factors. Indicatively, the policy also depicts significant influences on the political arena. Observably, the carbon tax principle is yet to have potential impacts on the manufacturing industry within Australia (Garnaut & Garnaut 2011, p. 44).
There are evident arguments that the policy has severe negative influences on the life standards of most Australia citizens. Many firms are likely to lay off their workers.
Additionally, the firms are ambitious to minimize their investment and operational bases. These factors have important economic implications on the development of the entire country. Principally, the carbon tax is never justifiable on solitarily on economic grounds. There are several considerable reasons for this postulation. The Australian economy provides a typical example.
The case demonstrates the potential impacts of a carbon tax on various sectors. The environmental and social implications of the carbon tax are indisputable. There are notable organizational effects of the carbon tax within the economy (Suh 2008, p. 31). Due to this policy, nine of every ten corporations must experience detrimental impacts. Most corporate leaders reiterate this observation. This potentiated effect is due to the explicit and implicit tax stipulations outlined within the policy.
Therefore, there are eminent social impacts of the policy. About one million individuals engaged in different industrial and manufacturing activities presently undergo social and job-related pressures. This is due to the impacts of the carbon tax policy. The extra taxes imposed on important raw materials pose serious economic effects. Particularly, this relates to the efficient work processes within the affected sectors and industries.
There are important positive impacts of the carbon tax policy (Claus 2010, p. 55). Particularly, these are observable within environmental managment practices. The reduction of global warming remains crucial. Apart from this, there is a remarkable gain in the minimization of carbon output or release. These evident environmental impacts extend to the global scenario. There are countries that are more likely to gain from the operation of the carbon tax.
For instance, the developing or emerging nations are more likely to benefit from this concept. The principle of environmental sustainability remains important. Actually, it is the main overriding target behind the principle of carbon tax. There are indications that most vibrant Australian corporations are out of the international competitive market. Apart from this, the carbon tax has notable impacts on human resources.
Although it is possible to attain positive social effects from the carbon tax policy, there may be other eminent negative factors. These may include unemployment and increase in the level of social insecurity and threats. Other influences may emanate from political realms (Metz 2001, p. 78).
Theoretically, political, economic and environmental factors remain closely knit. Social impacts also interlink within these elements. Other than the projected economic benefits, the policy emphasizes on the concept of environmental sustenance and viability. The ability of other nations to adopt green practices in their development processes remains crucial. The Australian carbon tax provides a typical and model example for other budding states.
The political reactions about the carbon tax may lead to other significant occurrences. The political intrigues were mostly evident during the initial periods of establishment of the carbon tax. During the period, a lurking mood of civilian and political rebellion ensued in the entire country.
Political ideologies during the moment largely vested on the negative impacts of the carbon tax policy (Creedy & Sleeman 2006, p. 60). This state of events had widespread impacts on different realms of life. Generally, the carbon tax draws diverse reactions from different points. These also include important government agencies and other regulatory organizations.
The carbon tax policy influences the state of international relations in Australia. This situation is mostly notable within the BRIC states. There are present rivalries concerning the extent of carbon cutbacks and minimization percentages. Particularly, this is evident during most retreats and conventions on environmental sustainability.
There are different states within Australia. The federal government advocates for the adoption and practice of carbon tax policy. Notably, the government achieves this objective through diverse strategies. Political and ideological implications of the carbon tax exist between the different states. Interestingly, certain states do not advocate for the operation of the policy.
There are considerable arguments about the effects of nationalizing the policy (UNCTAD 2012, p. 41). Amidst all the indicated reactions from different domains, the objectives of the policy remain clear. The basic conclusion is that the carbon tax is not justified explicitly on economic grounds.
Conclusion
There are diverse debates on the impacts of carbon tax. Australia is a transformative nation. The adoption of the carbon tax principle depicts this positive achievement. It has struggled to enhance its sustainable development. The policy has both positive and detrimental impacts.
This is observable within different realms in the country. Notably, there are also international and diplomatic concerns on the carbon tax policy. The policy does not explicitly base on economic factors. Notably, other potential domains experience significant impacts from the carbon tax policy. These include environmental, political and the social aspects within Australia.
List of References
Claus, I 2010, Tax reform in open economies: international and country perspectives, Elgar, Cheltenham.
Creedy, J & Sleeman, C 2006, The distributional effects of indirect taxes: models and applications from New Zealand, Edward Elgar, Cheltenham, UK.
Garnaut, R & Garnaut, R 2011, The Garnaut review 2011: Australia in the global response to climate change, Cambridge University Press, Cambridge.
Lye, H 2009, Critical issues in environmental taxation, Oxford University Press, Oxford.
Metz, B 2001, Climate change 2001: mitigation, Cambridge University Press, Cambridge.
Serret, Y & Johnstone, N 2006, The distributional effects of environmental policy, Edward Elgar, Cheltenham, UK.
Suh, S 2008, Handbook on input-output economics for industrial ecology, Springer, Dordrecht; London.
UNCTAD, (United Nations Conference on Trade and Development) 2010, Trade and environment review, 2009/2010 promoting poles of clean growth to foster the transition to a more sustainable economy, United Nations, New York, NY.
Traditional litigation occurs when the offended person reports the offense to a court. In this phenomenon, only the accused and the plaintiff appear in court where the court or jury makes a verdict in accordance to the evidence presented by the parties (Kubba, 2012). Usually, the court evaluates the rules that apply to the case and makes a final decision. Traditional litigation depends on the ability of the parties to provide evidence (Molot, 2009).
This means that if a person commits offense and the complainant fails to provide adequate evidence, the court cannot make a decision or punish the accused. A pretrial allows recognition of persons participating in the case and the conflicting issue. According to Kubba (2012) A trial occurs when the court selects a jury and the parties and their attorneys begin by giving opening statements (p. 413).
The trial allows the parties to discover the weak points of their evidence and build strong evidence when the court process proceeds. The costs and duration involved when corporations employ traditional litigation causes calls for better methods for resolving disputes. The process is expensive plus time consuming and any organization using it poses risks to its entire operations.
Most corporations prefer Alternative dispute resolution (ADR) because it reduces expenditure plus risks (Cheeseman, 2010). Unlike traditional litigation, methods of resolution such as negotiation are preferable because they can safeguard information of the organization. This helps maintain the image of the organization and thus; ensures proper customer relationship. In case of mediation, the mediator is to make neutral decisions in order to resolve conflicts in an amicable manner (Molot, 2009).
What are the risks that businesses and other organizations encounter when dealing with traditional litigation?
Organizations found in disputes are susceptible to various business risks because of the situation of the court system. Liquidity may be inevitable where a corporation utilizes most of its resources tackling cases in court (Cheeseman, 2010). Managers should ensure incorporation of Alternative dispute resolutions (ADRs) in order to reduce these risks. Tradition litigation results to time drags due to the nature of the court system.
The time wasted affects the wellbeing and operations of the business (Molot, 2009). This results to the inability for the organization to sustain itself by funding it operation and remunerating its employees. Organization image is a fundamental aspect to a successful organization.
Use of traditional means for dispute settling may alter its image. This occurs when the public commences to view the organization in a negative way. This perception towards an organization is deleterious and affects the welfare of an organization even to the extent of bankruptcy (Cheeseman, 2010).
Traditional litigation is expensive; any organization practicing it risks the courts charges that may drag it to economic failure. Employing traditional litigation in an organization does not yield proper results due to uncertainty. It is not easy to predict the judgment of the court or jury in matters that concern user protection (Molot, 2009).
Where might ADR be a more appropriate measure in order for business managers to reduce those risks?
Reduction of risks involved in traditional litigation is possible if organizations incorporate Alternative dispute resolution. Cases that concern consumer rights can affect business operations if settled in court. If managers approach such issues through negotiations or mediation, organizations can preserve their image (Cheeseman, 2010).
However, the organization should ensure quality of product plus service in order to avoid repetition of the error. Mediation is likely to work where disputes exist between organizations. Here, both organizations can save costs and delays associated with trials and pretrial processes (Molot, 2009).
References
Cheeseman, H. R. (2010). Business law: Legal environment, online commerce, business ethics, and international issues. Upper Saddle River, N.J: Pearson Prentice Hall.
Kubba, S. (2012). Handbook of green building design and construction: Leed, Breeam, and Green Globes. Waltham, MA: Butterworth-Heinemann.
Molot, J. T. (2009). A Market in Litigation Risk. University Of Chicago Law Review, 76(1), 367-439.
In all the societies of the world, morality has always been viewed as an important virtue to ensure that individuals live in peace and harmony. To ensure that morality is maintained, a number of rules and norms have been formulated. These rules and norms aim at guiding the acts of individuals to ensure that they act in a manner that is consistent with the practices and traditions of the society [cause and effect]. This practice has been in existence since the beginning of civilization.
With the increase in human populations, development of the brain capacity and advancement of the society, the need and desires of man have always increased [cause and effect]. This has also changed the manner in which man acts and relates with his kin. Many societies therefore adopted different methods of governance to ensure that man lives in peace with his fellow kinsmen. Some societies adopted the capitalism approach while others adopted the communism approach.
Despite the differences in these structures, these two approaches have one thing in common; they are all governed by set rules, laws and procedures. All the individuals who are governed by these rules are expected to adhere to them to the latter. Breaching of the laws that have been set by the state normally amount to either a criminal or a civil wrong. A criminal wrong is an offence that has been committed against the state while a civil wrong is a wrong that has been committed against an individual [definition].
With this regards therefore, all the countries in the world have set laws that have been formulated to guide their subjects. These laws vary from one country to another. They have been formulated to ensure that the rights and duties of the state and its subjects are respected. To ensure that the law is applied effectively and efficiently, a number of maxims have been formulated. The maxim of equity is a prime example (Jacobus 839) [example].
According to this maxim, the law should be applied uniformly to everyone without favour of a given party. This maxim thus ensures that the law treats every individual similarly. However, there are circumstances where there are exceptions to this maxim. One of this circumstances occurs when an individual can prove that he/she was not of sound mind (was insane) at the time when the breach of law occurred. This therefore leads to the main focus of this paper.
This paper will critically analyse how the law should treat individuals who are mentally unstable. It will try to determine whether such individuals should be given a fair treatment, the considerations that should be put in place and the regulations that should be adhered to in order to ensure that the exception does not become a loophole of law.
Mental Disorder and the Law
The purpose of law is to ensure that the rights and duties of the state and its citizens have been respected. Therefore, the law has been formulated in such a way that ensures that these rights are recognised by the state. Any act that is inconsistent with the law will therefore amount to a criminal or a civil wrong. All the individuals who are governed by a specific law therefore owe a duty of care to other individuals who may be affected by their acts or actions.
However, in some instances, the acts of an individual may be guided by other factors that are beyond his control. Mental disorder is one of the main factors that may make an individual to act in a manner that is considered not be normal by the society [example]. Due to this fact, such individuals may act in their subconscious mind.
Due to this fact, it is essential for the law to recognise this fact and give such individuals a special consideration. This is because at the time when they committed these acts, they were not aware of either their actions or the consequences that may accrue (Torry 255).
It is due to this due to this fact that law of many countries has recognised the need to give a special consideration to criminal of civil cases in which individuals who committed the wrongful acts have mental instability. From a survey that I conducted on the cases that have been presented in the state of Florida, approximately 1% of these cases have used insanity or mental instability as a defence. Of these, 25% of these cases have been acquitted on the grounds of mental instability.
This figure can be looked upon from two different perspectives. On the first perspective, one can conclude that the law is flexible and rational. This is because it has taken into consideration the fact that an individual may be driven by other factor into committing acts that he may have avoided if he/she was of sound mind.
The individuals who support this argument thus feel that justice has been served. However, there are those individuals who feel that the special treatment of insane individual is unfair. This is because these individuals are treated more than fairly on the hands of the law. As a result therefore, the individuals who support this argument feel that justice has not been served. This is because the rights, freedom and duties of individuals have not been respected.
It is due to these arguments that several amendments have been made to ensure that the use of insanity as a defence is effectively used to ensure that justice prevails. This has come about as a result of the fact that this defence is seen as a loophole of the law (Torry 256). Many people view this defence as an alternative that wise attorneys and medical personnel use to acquit their clients from the criminal acts that they have committed. Due to the strong argument that they have presented on their case, judges and jurors are normally left with no alternative but to declare such defendants innocent of the crimes that have been presented to them [cause and effect]. This in turn leads to the release of criminals into the society. The overall outcome of this action is that the number of criminals in the society will increase. This will in turn lead to increased acts of crime. As a result, the rights of individuals in the society will not be respected. Once this happens, the law would have failed to administer justice and equality among its subjects (Torry 260).
The main aim of the law is to ensure that justice is served among its subjects. With regards to this fact, the law tries as much as possible to prevent individuals from acting in a manner that is not consistent with the rules and norms of the society. Individuals who breach these rules should face the consequences of their action.
However, for the law to be effective, it must be fair. That is why it normally gives individuals the chance to prove their innocence before their sentence has been passed. It is due to the principle of fairness that the law recognises that an individual can breach the law due to acts that arose as a result of his/her mental instability. However, for this exception to be granted, a defendant must prove beyond reasonable doubt that he/she was of unsound mind at the time that the wrongful act was committed.
To ensure that insanity is used effectively in criminal proceedings, many federal courts in USA and other countries of the world put careful consideration in the events that led to commission of the criminal act. According to Bonnie (2010), for a case to use insanity as a defence, there are some conditions that have to be fulfilled.
First, the defence must prove that at the time the act was committed, the accused appreciates the wrongfulness of his/her actions (Bonnie 760). With regards to this statement, the defendant can claim that at the time that the act was committed, he was not in control of his actions. On legal terms, this clause is referred to as cognitive prong [definition]. The accused must also prove that he/she was aware of the legal implications of his/her actions at the time that the crime was committed.
In legal terms, this clause is known as the volitional prong (Bonnie 176). According to this prong, an individual should know the impact of his/her actions with regards to the law that governs him [definition].
Therefore, for an individual to be acquitted of his/her crime on the grounds of insanity or mental instability, the defence team must prove beyond reasonable doubt that the accused was at the time of the occurrence of the offence not aware of the cognitive or volitional prongs. As a result therefore, such an individual did not breach the law knowingly. He should therefore be acquitted of the crimes that have been raised against him.
However, in many circumstances, the defence can come up with evidence that may state that the accused was at the time of the crime not of sound mind. This could or could not be the case. As a result, an individual who committed a crime knowingly can be acquitted of his crime if he/she proves that he was not of sound mind at the time of the crime. This thus makes this exception to be a loophole to the law.
With regards to the theory of multiple intelligence that was presented by Howard Gardener, an individual can easily prove the innocence of the accused by using the weaknesses of law (Gardener 507).This is the main reason why there are many people who do not advocate for insanity to be used as a defence in a court of law.
However, if this defence is abolished, then many people who are not of sound mind may not enjoy the principle of fairness of the law as a result of actions that they committed when they were not of sound mind [cause and effect].
It is therefore essential for the court to establish whether an individual was of sound mind at the time that the criminal act was committed. This is done to ensure that those individuals who are of unsound mind are given a fair treatment as a result of their mental condition while those who pretend to be mentally unstable face the full sentence of the law with respect to the specific crimes that they have committed.
There are several cases that can lead to psychosis (Jacobus 840). Schizophrenia, bi-polar disorders and intense stress and depression may have adverse effect on the mental stability of an individual [example]. These conditions may affect the thought process of an individual making it difficult for him/her to differential between illusions and reality. As a result, the judgement of an individual may be impaired. Due to this fact, such an individual may act in a manner that is beyond his control.
For the court to determine whether an individual was mentally unstable at the time that the crime was committed, it needs to have a forensic psychiatrist to determine the criminal responsibility of a patient. In such cases, a psychiatrist may testify in the case either as a fact witness or as an expert witness (Jacobus 841).
When a psychiatrist testifies as a fact witness, his testimony will be based on the direct observation of the facts. Here, a psychiatrist interprets facts as the available evidence has presented them. This includes the medical records and the mental status of the patient. On the other hand, when a psychiatrist testifies as an expert witness, his/her testimony is based on the knowledge that he/posses.
Here, he/she tries to explain the actions of the accused with regards to the case as a result of his mental condition. His/her argument is based on his/her superior knowledge that normal people do not posses. It is therefore the work of psychiatrists to conduct tests to determine whether the accused were of sound mind at the time when the crime was committed. From here, the court can determine whether such an individual shall be acquitted of the charges brought before him or not.
The decision that a court comes up with is also based on the fact of whether they consider only the cognitive prong alone or together with the volitional prong. If a court only considers the cognitive prong, it will be difficult for an individual to prove that he was not of sound mind at the time he/she committed a crime. This is because this clause is based on the fact that an individual appreciate the wrongfulness of his/her actions.
Therefore, if an individual was aware that the act that he/she committed was wrong, then he should suffer the consequences of his/her actions. Many federal courts in the US only use the cognitive prong in their cases. As a result, a high proportion of individuals are convicted as a result of the crimes that they have committed. On the other hand, if a court uses both the cognitive and volitional prongs, insanity if proved can be used to acquit individuals from the charges that have been brought against them.
Conclusion
The law has been formulated to protect the rights of the state and its subjects. Anyone who breaches these laws should be judged before the court of law. However, individual who are mentally disabled should be given special consideration by the law. This is because in the process of breaching the law, they were acting beyond their control.
However, to ensure that this exception is not used as a loophole of the law, an individual must prove beyond reasonable doubt that he was mentally unstable at the time when the crime was committed. This will ensure that the law only persecutes guilty individuals. This will in turn ensure that our society is safe and the rights of the state and its subjects are respected.
Works Cited
Bonnie, Richard. Should a Personality Disorder Qualify as a Mental Disease in Insanity Adjudication? Journal of Law, Ethics and Medicine, 4.2 (2010): 760-764. Print.
Gardener, Howard. In A Rounded Version: The Theory of Multiple Intelligences, Howard Gardner. New York: Sage, 2010. Print.
Jacobus, Lee. A World of Ideas: Essential Readings for College Writers. Boston: Sage, 2010. Print.
There are several legal forms of business that people may choose to start running. A decision about a certain form of business that an entrepreneur will choose depends on various factors. Some of these factors and situations are discussed below.
Sole Proprietor
In a situation when an individual feels like having full control of the business operations, for instance, making final decisions on key business issues, sole proprietor will be the best form of business to undertake (Legal Forms of Business Comparison, n.d). One person can start and manage this form of business with ease.
The above scenarios are not common for the other forms of businesses. Remarkably, the other legal structures have more than one person in the management. As a result, it will lead to sharing of opinions implying that chances of using an individuals opinion are minimal.
General Partnership
Preference of this form of business can arise in a situation when a group of people would like to run a business that they have full control over. Thus, each partner is actively involved into the managerial affairs (Legal Forms of Business Comparison, n.d). Moreover, in circumstances where people want to share losses, this form of business will be of preference to a one-person business. The above scenarios are applicable, since not all members are occupied in the managerial section. Regarding the issue of sharing losses, general partnership will be of preference to sole proprietorship because in the latter the owner bears all the losses.
Limited Liability Partnership
A scenario where a group of people would like to be partially responsible for the business losses can lead to the preference of this form of business. This is true when it comes to comparing this form of business organization to sole proprietorship and general partnership. Notably, in case of the business incurring debts the members in this form of business only become liable to a certain extent as opposed to the first two forms of business (Which Legal Form Is Best for Your Business?, Incorporation Article | Inc.com, n.d.).
Limited Liability Company LLC
This form of business perfectly suits those who want to minimize the paper work and find the best ways to pay taxes. This can be contrasted to an S corporation where maintaining of the records is hectic as the government imposes strict conditions on record keeping (Media, n.d.). Further, LLC is its own legal entity as opposed to S corporation, which have separate legal entities from its owners. This means that members of LLC can decide on how they will pay taxes, since they are part of the company.
S Corporation
When entrepreneurs want the business to continue operating even in cases of their deaths, S corporation will be the best option. This feature is the perpetual life of a company (Murray, n.d.). A form of business like a sole proprietor will cease to exist in case of the death of the owner. This characteristic coupled with that of separate entity treats the businesses and the members as independent from each other.
Franchise
In case when a person requires gaining from an already established business and even needs more training, franchise will be the best option (Media, n.d.). In comparison to sole proprietorship, making a brand name in business requires tolerance. This does not happen in a short period of time. Additionally, the available resources that franchises are willing to invest in a person will make this form of business the best one.
Corporate form
Lastly, if one needs to raise more capital and develop self-confidence in investors, a corporate form of business will be of high preference. The regulations in the corporates board give more trust to all stakeholders (Media, n.d.). Compared to partnership and sole proprietorship, which do not have perpetual life, corporate form of business will be able to acquire more funds.
References
Legal Forms of Business Comparison. (n.d.). KCSourceLink. Web.
Media. (n.d.). Business Models & Organizational Structure | Chron. Small Business. Web.
Murray, J. (n.d.). Businesses Types of Businesses. Types of Business Filing Business Taxes Taxes and Legal Issues for U.S. Small Business. Web.
Economic loss are incurred financially; they are only evidence by financial documents such balance sheet and receipts. Economic loss can be consequential pure loss. Pure economic loss occurs when physical injury to the property or person respectively is not taken into consideration.
In tort, pure economic damage is irrecoverable. Examples of pure economic loses are: income loses to a family when breadwinners dies through accident, market value loses due to poor architect advice and loss in a company production due to power interruption by a contractor (Cooter & Thomas, 2003).
Non-economic loses; on the other hand, controversially go against torts and limits damages of cap. The damages result from intangible harms. Mostly they are personal felt harms through symptoms and signs. The harms can be psychological stress, lack of joy, disfigurement, pain, and mental disorder. Non-economic loses cannot be calculated directly; however, forensics uses related elements to determine the extent of loses (Rothstein, & Sullivan, 2006).
Economic Losses Category
The three main areas of economic loss are earning loss in the past and future, probable pecuniary losses, household loses. Forensics can accurately calculate most damages caused through injury or wrongful death. In injury, the plaintiff faces impaired past and future earning ability. In personal injury, this is recoverable damage.
It measured by the plaintiffs diminished power and capacity in the future and past that is directly attributed to the injury. It is never based on actual earning capacity loss. There is no need for use of past earning history and documents to back up this such claim; however, there should be grounds to sufficient evident with a degree of susceptibility. Normally such proof is left at the discretion of jury (Cooter & Thomas, 2003).
The probable pecuniary losses upon wrongful death are a vital tool in arguing a claim. This consideration is also closely associated with beneficiary parties.
In wrongful death claim, loss of inheritance is also an element to this claim. Forensics can estimate with a certain degree loses incurred due to care, support, maintain ace, services, contribution to pecuniary values, counsel and advice with exclusion of inheritance loss. Spouse-disease relationship status, family harmony and shared interests are elements of consideration (Rothstein, & Sullivan, 2006).
Household loses are vital elements for forensics when making economic damages claims. In some states, hedonic damages are considered as part of this claim. Medical cost, fringe benefits and household services, are consideration in most states that forensics need to consider. Forensics need to consider household appreciation and discount rates while calculating this element. However, this is not mandatory in some states (Cooter & Thomas, 2003).
Conclusion
In any state, economic forensic testimony must have evidence consistent with facts on the case. This should be achieved through accepted economic analysis procedure and help from triers facts. However, economic forensic analysts need to know with a lot of accuracy their evidence limits for considerations.
Economic damage rule can be compressed into two main points i.e., in personal injury, the standard economic loss or damage is the earning capacity, while in wrongful death, the standard is probable financial support. While calculating, taxes need to be deducted from the estimated values. Money time values should be taken into consideration; as a result, prior losses need to be presented as they are with no adjustments. At the same time, future values should be calculated by present money value.
References
Cooter, R., & Thomas U. (2003). Law and Economics. Upper Saddle, NJ: Pearson Addison-Wesley.
Rothstein, R., & Sullivan, T. (2006). The modern law of damages. Toronto: Irwin Law.
In the case of Erlich v. Menezes, Barry and Sandra Erlich sued John Menezes, a general contractor for poor construction of their house. The two had entered into a contract with Menezes to have him build their dream home which later turned out to have major defects. Since the general contractor was licensed, they dealt with him in the belief that his work would be good.
Two months after moving into the new house, rains started and water would leak from the walls and windows. The plasters on the ceiling were saturated and when they could not hold more water, chunks of sand started falling off. The floor of the living room had several inches of standing water.
There were attempts to place caulking around the windows to minimize the leakage but this only worsened the situation as they melted and went on to stain the windows.
The house was later inspected by a different contractor whom confirmed that there were major construction defects. This proved that Menezes had been negligent in the course of his duty and had breached his contact with the home owners (Meiners, Ringleb, and Edwards 275).
Judicial ruling
The plaintiffs suffered both financial loss and emotional distress. Consequently, they sort compensation on the basis of negligent misrepresentation, negligent performance of duty, fraud and breach of contract. Due to the financial loss they suffered, the jury ruled that the plaintiffs be awarded $ 406,700 to cater for the repairs.
Barry Erlich had resigned from his place of employment since he was no longer in a position to effectively perform his duties and was awarded $ 15,000 for the earnings lost. He also received an additional $50,000 for suffering physical pain because of a heart condition that was aggravated by excessive stress.
Each of the affected parties had suffered some kind of emotional distress because of the condition of the house. Sandra feared that the house would collapse in case there was an earthquake. For this reason, each of them received $50,000.
The dissent was however opposed to the idea of awarding compensation with regard to emotional distress because the contractors negligence only caused direct damage to property and financial loss. The Supreme Court however reversed and remanded claiming that emotional distress damages could not be compensated (Meiners, Ringleb, and Edwards 275).
Economic value
The case of Erlich v Menezes had major economic implications to the plaintiffs which should have economically affected its outcome. Barry Erlich developed a heart condition which meant that some of their resources would be spent taking care of his medical expenses. Their income would therefore be affected either by directly taking care of the medical bills or by an increase in the health insurance premiums.
He also had to resign from his employment and therefore the loss of income would adversely affect the familys living standards. It was uncertain for how long he would be out of employment therefore; the amount of financial loss could not be quantified. When the family realized that their house had major defects, they spent money on repairs. Such finances would have been spent on other important family needs.
Diversion of their income to cater for repairs of a house they had already spent money constructing was an inconvenience. The plaintiffs had to consult a different general contractor after their efforts to repair the house failed. This was an additional expense that would have been avoided by Menezes had he been more careful in the performance of his duty.
There were legal costs incurred by the plaintiffs when they decided to file a law suit against the defendant. The time spent on repairs and on the case would have been spent in income generating activities by the plaintiffs. Due to the time value of money, there was a possibility that the cost of building materials had appreciated between the time when the house was first constructed and the time when repairs were being done.
When a person is under mental stress, it is very likely that they are not able to effectively perform their duties and even through Sandra did not lose her job; there was a possibility of the stress affecting her performance. It was therefore necessary for the plaintiffs to be compensated for the economic risk they were placed in by the state of their house.
They should have received monetary compensation not only for the demolition and repair of their house but also for other indirect economic injury. This would include enough compensation for loss of income as well as any medical expenditure that would be incurred by the plaintiff. Emotional injury should also have been catered for in terms of the loss in income caused by poor performance due to stress.
Other damages
I do not agree with the ruling. Besides suffering financial loss, the plaintiffs also suffered emotional distress and it was their right to be compensated for such distress. The extent of the emotional discomfort was so bad that Barry became ill and lost his job due to stress.
The family was living in deplorable conditions due to the decisions made by the contractor. It was therefore only fair that they be compensated for both the distress and the amount they would require to repair their house.
The contractor owed his clients duty of care and by constructing a defective house for them, he breached this duty. The plaintiffs were therefore eligible for compensation under tort. There was also an intentional tort because the contractor should have foreseen the emotional distress caused to his clients when constructing a building that did not meet the standards.
By consulting a licensed general contractor, the Erlichs trusted him to be aware of his duties and be able to effectively execute them. Because the contractor would offer similar services to other clients, it would be important for punitive damages to be awarded as this would lower the risk of such an occurrence in future.
Liquidated damages should also have been awarded. In this case because the amount of liquidated damages had not been predetermined, it was the duty of the court to come up with a figure for such damages. Incidental damages would have been awarded to the plaintiffs for the incident that occurred after they moved into their new home.
This is because there were extra expenses that would be suffered by the plaintiff as they attempted to repair their home. The above mentioned tort damages were applicable because there were both breach of good faith and physical injury to one of the plaintiffs.
Works Cited
Meiners, Roger, Al Ringleb and Frances Edwards. The legal environment of business. New York: Cengage Learning, 2006.print
Compensation is defined as the wages, salaries and bonuses that an employee gets while in employment. On the other hand, benefits describe the extra consideration that the employer offers to the employee. However, the employee is not expressly entitled to benefits. Benefits include health care packages, life insurance and any other form of payment to the employer which may be termed as paid off.
The amount set aside by companies for benefits appeal to employees and companies with high compensation rates hence attracting competent employees. Some companies make compensation of different employees to be dependent on the performance of the employees while others put it at a flat rate. It is also imperative to note that some compensations offered at the workplace is an attraction gesture while others are expressly provided by a designed policy (Boyes & Melvin, 245).
Benefits focus on employee needs while trying to reconcile that with the set objectives of the organization. They include improving the level of employee satisfaction by the keeping the employees healthy and finding ways of motivating them. There are benefits that an employee extends to the employer for jobs that were not done.
Paid off benefits are very common and they include an employee getting breaks and holidays. Some employers restrict employees to sick leave only. In addition, medical benefits are wide and include retirement of health insurance. Lastly, the retirement benefits and retirement bonus fall under the category of other benefits (Galasso, 257).
Italian benefits and compensation schemes are based on government provisions that are said to be generous to workers. The employees in Italy are given a narrow way in comparing and choosing the available pension schemes. The regulatory framework in place has been restructured to remedy the situation.
The role played by the Italian government has remained very helpful in supporting the health care and pensions programs. The dimensions surrounding good job and a better working place has become increasing under strict consideration of companies in Italy (Galasso, 256).
The high quality jobs that are offered depend on the benefits and compensation schemes of different companies. The nature and quality of employment substantially affects the health and the general wellbeing of an employee. Jobs with a high percentage of extreme working hours have negative outcomes.
Benefits of a good quality job are not only realized by the employees, but the employers benefit too. Positive outcomes in different organizations within Italy have been achieved due to the adoption of quality ways of promoting stable, quality employment. In order to minimize the turnover, employees have been engaged in the process. An estimate of 59% of the employees in Italy engaged in this cost reducing system to express their willingness to stay in employment for a long time (Mignone, 88).
The main indicators of quality employment in Italy include the existence of quality employment through attractive benefits and compensation schemes. Compensation and benefits are distributed in a manner that is fair hence meeting many of the employees basic needs.
Fair and equitable compensation benefits schemes have been geared towards getting a stable environment. In this case, the employer has been able to meet his/her economic and health needs. Employees are highly productive if they are given a range of benefits from which to choose (Mignone, 89).
In comparison, the work places in Italy have a small number of payment options of share schemes and profits while France, Germany and Spain have large numbers of payment options. In consideration to workers managerial and professional level, France has the highest number of flexible pay options.
The mode of assessment was through the use of a scale to measure a variety of options that are in existence from different workers. This includes employee share scheme and profit sharing schemes. The benefits available in the Italy schemes cut across the managerial professional and other types of employees (Boyes & Melvin, 240).
The availability of different variations in organizational state in Italy compared to other countries shows that, basing on individual performance and team performance, Italy has the highest pay variations which are pegged on the organizational level. Advancement and learning which is a benefit extended to employees varies in comparison. A comparison of Italy to France, Spain and Germany shows that Italy has few opportunities for learning and education of employees.
On the other hand, Germany offers high rate of opportunities for learning and development. The Germany case rests on average learning opportunities for employees at different levels. The opportunities based on the development and the learning of the employee so as to expand and enhance competent skills to handle different challenges in the work place is a benefit. In Italy, it has not been highly implemented compared to France, Germany and Spain (Mignone, 80).
The well being of employees and provision of safe workplaces has facilitated protection of employees in the workplace. The workplace policies available in Italy show that the policies in place are to be looked at and assessed on how they have protected workers in Italy and other countries. Compared to France, Germany and Spain, Italy has demonstrated high levels of employees performance programs as a way of giving a clear assessment to training.
The organization of work in Italy is also reliable since it considers the developmental needs of the employees. On the other hand, France seems to make the highest recordings of employees performance assessment reports. A clear estimate indicates that 86% of Italian workers are conversant with assessment training to support developmental needs of the employee (Reilly, 76).
An approximated 57% of the employees in Italy have used the performance assessments to show how organizational levels of the workplace are handled. On the provisions of security and predictabilities, Italys employment field has shown the capacity to communicate the terms of employment to different employees in different categories.
The determination of the effectiveness of such provisions to an employee warrants a comparison of Italy with other countries such as France, Germany, and Spain. The comparison shows that Italy has a small percentage of using recruitment freezes and internal transfers in reducing the work force. In Germany, the exercise is widely known, and employees are likely to report the internal transfers and recruitment freezes as a method of reducing the work force (Galasso, 258).
Having a workplace whereby flexibility is enhanced is one of the benefits that employees get to enjoy. In Italy, the work places have a very low proportion of flexibility available. In Germany and France, employees enjoy flexible options where they are allowed to exercise freedom of choice and control over the working conditions and work friendly options (Boyes & Melvin, 240).
The programs incorporated in the Italian work place show that diversity and cultural respect are highly pronounced. In Italy, the programs mainly target people with disabilities, women and workers at old age. This lies under the category of benefits available to employers. Compared to France, Germany and Spain, Italy seems to be having more programs in average work places.
The relationship of different employees and their employer at the work place is very critical. This benefit enhances productivity at the work place. The interaction between employees and the managers or supervisors is very vital. In Italy, constructive relationships at the work place have been used so as to promote quality employment environment framework.
The relationships at workplaces in Italy show a professional way of dealing with different conflicts at workplace. In Germany, the constructive relationships are not popular in job places. This explains the reason as to why the German organizational level is very poor. The foregoing comparison considered the issue of distinct policies and how each country monitors it benefits to employees. In their unique way of offering benefits regulated by different laws and policies, the discussion shows points of agreement (Reilly, 16).
Conclusion
The discussion above clearly shows the essence of benefits and compensation in Italys working environment. The availability of different programs meant to promote the realization of compensation and the said benefits has been considered. The comparison on how employees enjoy a wide range of benefits as an individual and at the organizational level.
The way the benefits have been facilitated compared to other countries has been shown. The discussion shows that Italy is better in offering the said benefits than France, Germany and Spain. The different systems of labor and policies could not be completely ruled out from the discussion.
Works Cited
Boyes, William J. & M. Melvin. Fundamentals of Economics. Boston: Houghton Mifflin, 2009. Print.
Galasso, Vincenzo. The Political Future of Social Security in Aging Societies. Cambridge, Mass. [u.a.: MIT Press, 2006. Print.
Mignone, Mario B. Italy Today: Facing the Challenges of the New Millennium. New York: Peter Lang, 2008. Print.
Reilly, David J. Employee Benefits and Executive Compensation: Proceedings of the New York University 59th Annual Conference on Labor. Alphen aan den Rijn: Kluwer Law International, 2010. Print.
Kuwait is one of the Middle Eastern countries that have benefited from foreign domestic workforce. It is estimated that the foreign domestic workforce forms a third of the countrys total workforce. Despite the essential role these foreign domestic workers play in the lives of the Kuwait citizens, still, they are inhibited from important social benefits such as free education and social healthcare.
Moreover, the domestic workers that comprises mostly of foreigners from South Asia and Africa are facing abuses and exploitations under the sponsorship program through which they got legal entry into the country. According to various research findings, foreign domestic workers in Kuwait face numerous problems that include none payment of wages, sexual and physical assaults, psychological abuse, excessive long working hours, among other unreported abuses.
Therefore this paper will provide a concise report on the problems these foreign domestic workers are facing in Kuwait. The conclusion that the foreign domestic workers in Kuwait face issues that range from non-payment of wages to long working hours are drawn from the finding that these domestic workers lack legal backing that would help them fight against these abuses.
The Kuwaits labor legal system does not recognize the foreign domestic workers while the immigration laws forbid them from running away from their work. Besides, the immigration rules have outlawed shifting or leaving the original job without consulting the employer.
On the basis of the findings, it is recommended that the Kuwaiti government should first reform their legal system to recognize and provide protection to the foreign domestic workers. Among the critical legal reforms include repealing the Aliens Residence Law articles that give individual employers control over workers freedom of movement, immigration statuses and the freedom to terminate employment. Also to be included in the legal reforms is the recognition of the foreign domestic workers under the Kuwaiti labor laws.
The paper will first determine the problems faced by these foreign domestic workers and the legal prohibitions that act as obstacles to the realization of their rights.
Then the paper will present the legal findings that will form the basis for recommendations that should be taken by the Kuwaiti government as well as other stakeholders in providing the solutions to the problems faced by the migrant domestic workers. The recommendations will range from the legal reforms to the inclusion of the domestic workers in the labor laws of Kuwait. Finally, the conclusion will be drawn from the recommendations and findings.
Introduction
The estimate by the World Bank is that over 74 million, approximately half of the total migrants, majorly from the developing countries do not move to the developed countries. Rather, they settle and reside in other developing countries (Motaparthy and Sandler 2).
Such south to south movements are very common in South-Asian countries where most of the migrant workers move and settle in the rich oil states of the Persian Gulf, including Kuwait. Whereas there are differences in the way these migrant workers are treated in these countries, a majority has remained in the low skilled jobs. The female foreign domestic workers make up a third of the total expatriate workforce (Motaparthy and Sandler 3).
In Kuwait, foreign domestic workers play an essential role in almost every Kuwaiti household. Thousands of foreign domestic workers have been found to be working for the Kuwaiti citizens (Motaparthy and Sandler 4). Women make the majority of these foreign domestic workers (Motaparthy and Sandler 4).
While some employers have successfully developed a friendly and caring relationship with domestic workers who do odd jobs such as caring for their children, cooking their meals and clean their homes, others have taken the advantage of the weak legal systems that barely protect the rights of these migrant workers and isolated home environments to abuse the right of their workers (Motaparthy and Sandler 3). Worse off, some workers go for several months without being paid.
It has also been found that among all the categories of the informal sector, the domestic workers earnings are extremely low and they face myriads of problems. Domestic workers are generally employed to carry out household tasks comprising of cleaning the houses, cooking food, washing dishes, clothes, fetching water together with a few outdoor chores such as childcare activities, irregular marketing grocery shopping and even ration drawing (Motaparthy and Sandler 3).
In fact, a majority of these women migrant workers are doing more than one type of job and spend more than the normal time doing their chores. Some are working even past midnight to ensure that they complete their employers assignments (Motaparthy and Sandler 4). Comparatively, these women spend more time working for their employers more than they could have spent in their households.
To add in to the woes of these foreign domestic workers, majority of the Persian Gulf governments have weak legal systems that could protect the rights of these migrant workers (Motaparthy and Sandler 4). Countries such as Kuwait have legal policies that further exacerbate the problems of the migrant workers. The Kuwaiti labor laws totally ignore the presence of foreign domestic workers while the legal immigration system prevents migrant workers from changing their jobs and leaving the country without the consent of their employers. As a result, most of the foreign domestic workers have been violently abused and deported without any legal redress.
Therefore the objective of this report is to examine the problems of these domestic workers in Kuwait and the level in which such problems affect these domestic workers. Also, the paper will examine the legal obstacles faced by these women in order to offer recommendation that should be taken into consideration by the policymakers to ensure that all the foreign domestic workforce in the country are fairly treated according to the international labor organization standards.
Statement Problem
Basically, across several fiscal years including 2009, 2010 and 2011, countries that send their domestic labor to the City of Kuwait received manifold complaints. Often, the domestic workers in Kuwait complained to their respective embassies concerning psychological abuse, sexual harassments, physical torture, and undue long hours of work with no rest as well as non-wage payments. There are very little redressing opportunities for the household workforce leading to various offensive cases lingering unstated.
The Kuwait domestic labor law also seems to bar the domestic workers from seeking redress, whereas the migration laws ban the domestic workers from abandoning their particular workplaces without the recruitment agencies consents. There are reported cases of deportation, indefinite detention and criminal charges tied to any domestic worker who quits job without the consent of the recruiting agencies and employers.
Each time, many household workforces are expatriated by the Kuwait administration because they are incapable of successfully following and raising their grievances. Other employers demand that domestic workers desiring to seek alternative employments must reimburse the initial recruitment fees given that they have violated the Kuwait labor regulations. This is done by withholding employment alteration consent and confiscating the passports.
The constitutionally drafted labor law has equally excluded the Kuwait household workforce from the requisite labor protection. The Kuwait sponsoring system for domestic workers spearheads obnoxious status for employment since it holds expatriate workers accountable for quitting employments without the responsible authorities consent and thereby violating laws. It is apparent that the contractual clauses are hardly enforced thus intentionally excluding the domestic workforce from legal protections.
The type of problem, those affected and failure to resolve the problem
The current domestic workers problem that is reported in the Kuwait can be classified as being humanely, moral, legal as well as social. From the Human Rights Watch report, it is apparent that the entire domestic workers populations, the recruitment agencies, Kuwait government, local churches and family members of the abused domestic workers are all affected.
The unionization, the work conditions, the private labor supply and recruitment agencies also face a deteriorating growth. In other cases, the recruitment systems are considerably abused leaving the domestic workforces with diminutive lawful protections.
If Kuwait fails to resolve the looming problems, it is likely to lose the official ties it has with the rest of the world. In fact, Kuwait needs to sincerely demonstrate to the international community that it takes the basic human rights into consideration and that it is committed to the protection of the domestic workers rights.
Solutions
In case the Kuwait government notes specific migrant domestic workers vulnerability, it is advisable that the government should pursue decisive efforts geared towards ensuring that such workers are effectively protected both in practice and in law against any sort of discrimination. This implies that the Kuwait government ought to warrant that there are effectual access and enforcement of complaint procedures.
This can be realized thru introducing legalized solutions in all member states. The solutions could be inform of increasing household motivations to employ domestic workers who are duly registered, urging workers only to accept legally contracted work and offering provisions in areas like civil laws, labor laws, social insurance and tax.
The government of Kuwait should equally be obliged by the international law to sincerely protect all individuals rights and the domestic workers employment affairs irrespective of whether such workers are in possession of legitimate work permits. That is, provided the employment links have been instigated, the government of Kuwait must ensure that engaged domestic worker enjoys all the employment and labor rights until the termination of such relationships.
The provisional domestic labor rights include providing equal remuneration and fair wages for all domestic jobs that offer similar values devoid of discriminating between men and women. There should also be the provision of wellbeing and secure operational setting, rational working hours restrictions, vacation and respite hours with compensation through civic and episodic festivals.
Since the domestic workers have the rights of living dignified, peaceful and secure areas, the Kuwait government, the sponsoring agencies and employers must be obliged to warrant the domestic workers physical safety.
In case the employers failed to offer shelters to the domestic workers which would, in turn, warrant their dignity, peace and safety, then the Kuwait government ought to provide some alternatives. To realize these, there must be well-stipulated employment conditions along with ratified application procedures as well as domestic workers social protection by sponsoring agencies, employer and the government (Motaparthy and Sandler 20).
The Kuwait government should draft legislation for domestic workers. The drafted law should have provision establishing workdays equivalent to eight hours. The employers must be compelled to offer the domestic workers compulsory annual leaves during periodic and national holidays besides imposing penalties on employers who are reported to remit late salary payments. In fact, the Kuwait employers should be prohibited from recruiting domestic workers thru non-licensed state agencies.
A law should be implanted to burr recruiting or sponsoring agencies and employers from confiscating the domestic workers identity documents or passports. Moreover, there ought to be provisionary enacted laws that prohibit employers from forcing domestic workers to carry out house chores tasks which are not categorically stipulated in the contractual agreement.
To recognize the commonly raised non-payment of wage complaints, the Kuwait government needs to enact a law that requires the entire domestic workforce to set up genuine bank accounts in their respective residential home states before migrating to work in Kuwait.
Such bank accounts or payment systems should be used by the Kuwait government and the domestic workers countries to instruct the prospective employers to monthly or annually deposit the domestic workers salaries into the stipulated bank accounts prior to workers migrations. Thus, the receipts for bank transfers should serve as the justified and acceptable payment proof.
Kuwait should institute laws that lay down adequate procedures through which domestic workers complaints can be arbitrated and whenever they remain in doubt, they should be referred to a legitimate court system. This should warrant that all domestic workers with unresolved complaint cases will be exempted from the arbitration fees.
The Kuwait household workforce legislation must tolerate household workforce to transmit their service provisions devoid of seeking their guarantors approvals thru following particular occupation disagreement resolution courses.
The fines that are recruiting agents or the employers pay because of violating the domestic workforce rights and the Kuwait expatriate labor laws ought to be deposited into the state-administered fund which guarantees disbursements to the domestic workers in times of need. For example, in cases where an injustice is eminent and when a domestic worker becomes unwell for quite an elongated time.
Injustice situations include cases where the Kuwait domestic employers benefit unjustly from the services rendered by the workers through failing to remit their wages (Motaparthy and Sandler 35).
Consequently, the unjustified benefits to the employers might accrue from the failure by the employers to terminate or renew the employment contracts devoid of offering the requisite payments for the domestic workers end of service. Finally, effective complaint and monitoring mechanisms should be implemented such as translations services requisite for investigating abusive complaints.
Alternative solutions
Various alternative solutions have also been proposed that includes
Strong domestic worker organization should be established with an aim of protecting the domestic workers rights.
Advocate for the transformation of societal power relations that would ensure gender equality, women empowerment and the observation of human rights including that of the domestic workers.
Advocate for the accountability and the democratization of the organizations that deal with the rights of domestic worker
Collaborating and working together with other labor unions
Ensure that the rights of workers, as well as proper working conditions, are secured through enactments of the proper legislations.
These propose solutions add to the restrictive laws and stringent penalties that will ensure that the rights of the domestic workers are properly observed. They also add to the measures are aimed at preventing abuse by the employees as well as the recruitment agencies of the domestic workers.
In other words, these proposed solutions will ensure security and safety of the domestic workers. In terms of cost, both the Kuwaiti government and the families will suffer. High costs are attributed to financial resources, time and human resources that will have to be spent to ensure that everything is in order. The cost challenge adds to the other challenges such as lack of support from the public, implementation challenges as well as conflict of interests.
Findings
For decades, the Kuwait citizens have engaged the household populate emigrant workforce. In fact, the strains for household recruits have sequentially amplified since the fiscal 1965 when just 1000 household immigrant workforce worked in City of Kuwait. The trend began to take a different course in the middle of 1970s when the republic of Kuwait had up-surging revenues from its oil.
This made home workforce from various other states to travel to Kuwait to accomplish the escalating household work strains. By the financial year nineteen eighty nine, total overseas house workforce varying from one hundred thousand to one hundred and thirty thousand was housed by the state of Kuwait. The figure of Kuwait household recruits was accounted to have surpassed six hundred and sixty thousand by the fiscal 2009.
At present, the majority of household women workforces originate from South-East-Asia albeit a mounting sum of African drifters steadily enters into the Kuwait household employment bazaar. When compared to the rest of the Middle East, Kuwait is ranked second after Saudi Arabia in terms of domestic workers employment.
The total domestic labor is in excess of one-third of the entire emigrant workers (Motaparthy and Sandler 23). Whereas domestic workers play significant roles in the Kuwaitis homesteads, there are some lapses in the protection gaps by countries that send their citizens to work in Kuwait.
Protection gaps by the sending countries
Whereas governments that send domestic labor to foreign countries rely on the migrant domestic workers financial contributions in making their local economies, it is reported that such countries take minimal steps when protecting nationals who migrate for domestic work be it during or before their respective migrations.
For instance, domestic workforces migrating to the Kuwait usually do so via the self-governing recruiters or agencies that pay visits to their villages or hometowns and then link them up with the recruitment or sponsoring agencies found in their abode states. The labor agents are bound to arrange for every formality that a migrating worker is required to have, including the signing of the employment contract by the domestic worker.
The weak regulations reported on the side of governments of countries that send their domestic workers to foreign countries such as Kuwait have left most workforces vulnerable to various abuses. These include human trafficking cases, forced confinements, misrepresentation of the contractual terms as well as other kinds of abuses while under the care of recruitment agencies. A report by the Human Rights Watch showed that scores of abuses were faced in the process of recruiting migrant domestic workers.
For example, the Indonesian domestic workers faced forcible confinements in overcrowded local centers for training for months prior to starting their journeys. The domestic workers from Sri Lanka reported that they were deceived about their job locations and working conditions besides being charged illegal recruitment fees (Motaparthy and Sandler 22).
Exploitative practices, namely the misrepresentation of employment terms and the substitution of different employment contracts instead of the ones signed in address nations similarly prepared stages for extra cases of domestic women workers abuses. Furthermore, government officials who are accountable for supervising the Kuwait domestic work have apparently failed to assume their responsibilities, thus causing additional workforce abuse cases.
The sending country governments have also neglected to recognize domestic workers abuses thereby perpetuating such abuses as result of the failure of the existing institution to implement the rights of the workers effectively and the dearth of labor protection rights under the law of Kuwait.
The labor-sending countries diplomats have tried to negotiate with the government of Kuwait concerning the improvement of domestic workers protection and observation of their rights via mechanisms like MOUs and political dialogues. The memorandum of understanding incorporates elements such as paying the domestic workers salaries into their bank accounts, prohibiting the confiscation of domestic workers passports, specifying the weekly rest days and minimum wages.
Nevertheless, the sending countries have failed to appropriately utilize the diplomatic tools for protecting domestic workers in Kuwait. The failure to realize systematic domestic workers protection in Kuwait is attributable to the competing priorities, which include diplomatic cooperation, maintenance of remittance flows and the political pressures intended to maintain domestic workers recruitments.
Legal frameworks pursued by the emigrant domestic workforce
In Kuwait, the work of domestic migrant workforces is regulated through combining weak labor protections and the exceedingly restrictive immigration laws. Indeed, the 1959 Kuwait Alien Residence Law is perceived as the prime law which governs work permits and legal residency for domestic workers. However, lawmakers have incessantly excluded the domestic workforces from the legislative national labor protection.
For example, the Kuwait Interior Ministry updated their standard contract in the financial year 2006 by setting forth most domestic workers obligations upon the employers and the recruitment agencies.
The mandate given to these two bodies include the responsibility of the employer to pay the necessary recruitment fees to the sponsoring agencies. There is very little provision for protecting the domestic workforces while the Kuwait government dismally monitors the well being of domestic workers, and hardly are there effective means for domestic workers to pursue and lodge their complaints.
The Kuwait immigrant domestic workers have their rights protected under the conventional international law body which covers all their distinctive rights either as workers or as individuals.
The national laws of Kuwait equally offer certain protections to the working condition including the forced confinement constitutional protection, banning and prohibiting the recruitment or sponsoring agencies from asking for any fee from the domestic workers in addition to redressing rights in matters pertaining to unlawful offences such as sexual and physical assaults (Motaparthy and Sandler 27).
Pitiable enforcement of the existing domestic legislation, immigration laws and recruitment legislations has however the domestic workforce with very little avenues to seek when encountering hardships in Kuwait. Sometimes, the domestic workers hardly get access to the protections that human rights offer them in their local or domestic laws.
Other legal exclusions or laws tend to violate the commitments of international human rights. Specifically, there are the domestic work exclusions from the labor protection that infringe both labor rights as well as nondiscrimination protections. During the 12th May 2010 Kuwait Universal Periodic Review Session held in Geneva, most delegations observed that the domestic workforce in Kuwait remain barred from the major global labor rights standards such as those which are offered to workforces under the Kuwait labor law sectors.
Obligations of the international human rights
Under the international agreement and universal human rights law, Kuwait is obliged to protect the ratified domestic workers rights within its territorial boundaries from abuses that ensue from the public officers, agency staffs, and the employers.
The treaties and laws similarly compel Kuwait to offer remedies to domestic workers with valid claims and to provide efficient recourse means to domestic workers who claim abuses. Despite the fact that Kuwait is obligated to protect the human rights, it has emerged that the domestic workers lacking valid residential permits or those who abandoned their sponsors face discriminatory treatments when seeking redress (Motaparthy and Sandler 28).
Systems breeding domestic worker exploitation
The domestic labor recruitment sector of Kuwait is dominated by business practices, restraining immigration sponsorship systems and deficient labor protections. These form labor marketplaces where the Kuwait employers have both the freedom and financial incentives for exploiting the domestic workforce with diminutive fear of liability, whereas workforces exercise dismal power over the employment circumstances.
Basically, the recruitment or sponsoring agencies charging the Kuwait employers the primary employment fees that are equated to the domestic workforce yearly remuneration are bound to pass on such expenses illegally to the domestic workforce.
The employers might require any domestic workers who may want to part ways with their respective sponsoring employers to either remit or offer full services or repayment to the new employers. It is also reported that the Kuwait employers could similarly utilize such status advantages to act as the immigration sponsors of the workers to exclusively extort similar reimbursement payments (Motaparthy and Sandler 42).
According to human rights watch reports, it is true that employers and agencies often seek reimbursements with impunities. For instance, habitually the Kuwait employers demand that the domestic workers reimburse payments in order to fund the officially requisite release form needed to transfer the sponsorship for employment. Conversely, the Kuwait employers might demand to return backs the domestic workers passports and forcefully agree to let them leave Kuwait.
In some cases, the domestic workers reported that the sponsoring agencies asked them to make payments because they have violated the regulations of Kuwait and any payment reimbursements that employers demand (Motaparthy and Sandler 42).
For instance, an Ethiopian worker by the name Tigit A asserted that the recruitment agencies have rules stipulating that any domestic worker leaving her employment before completing a two years contract while citing abusive conditions are obligated to pay back the recruitment fees (money) as well as traveling ticket.
Employers pay high recruitment fees as they hire the domestic workers, therefore, making others to abuse their sponsorship powers. Generally, the sense that the employers have bought or paid for a domestic worker makes most Kuwait employers to have the feeling that they are unconstrained to handle and treat the workforce whichever way one wishes.
This takes place, especially in the context of poorly and inadequately enforced laws. The treatment assumes many forms ranging from locking the domestic workers inside the houses, sexually harassing them, hitting, insulting, withholding the salaries and demanding them to work longer hours devoid of days off.
Whereas not all employment situations attain these abusive levels, some Kuwait employers have the feeling that denying domestic workers contract agreements and individual rights is justifiable. Employers refuse to accept domestic workers request to terminate the contractual employment, retain their passports and restrict the workers movements.
After domestic workers have completed their two years of service contracts, recruitment agencies tend to facilitate repayments of the recruitment fees workers transfers (Motaparthy and Sandler 43). This is realized by arranging for the sale or return of the Kuwait domestic workforce. Such systems for hiring and returning the Kuwait domestic workers currently constitutes the secondary labor markets where employers hire domestic workforce for a time span of two years or even a few days.
Recommendation
Various key recommendations have been offered to the problems faced by these migrant workers. The key recommendations range from those that are directed to the Kuwaiti governments to those that are directed to the foreign governments whose nationals are working in Kuwait. To the Kuwaiti government, it is recommended that they should first reform their legal system to recognize and provide protection to the foreign domestic workers. Among the key reforms include;
Transforming the sponsorship system, especially removing the job escape provisions as well as including the criminal charges and penalties for those employers who violate the rights of the workers. Besides, the Alien Residence Law should be abolished or adjusted to provide free labor mobility, especially to the foreign domestic workers. This mobility would allow an access to other opportunities without consulting their employers and losing their immigration conditions.
Enact labor legislations that recognize the foreign domestic workers. These legislations must ensure that all the foreign domestic workers are included under the Kuwaiti labor laws. Further, the labor legislation must ensure equal protection of the foreign domestic worker just like any worker under the primary labor laws.
While drafting the legislation, the standard labor right protected by the international labor organization conventions must be taken into considerations or included as part of that legislation. The international labor conventions defines the standardized working conditions, including the number of working hours, holidays as well as the minimum wage requirements. The legislations should be pegged on these conditions.
The recruiting agencies should inform domestic workers about the Kuwait legal requirements, regulations and their obligations. Further, the information and contact details should be made available in case there is need for assistance. It is essential that the information be made in a language that is understandable to the foreign domestic workers.
There is need for the ministry of labor to have extra authority to decisively deal with domestic labor grievances through the application of any available adjudication mechanisms. In addition, those cases that are beyond the labor disputes resolution or arbitration mechanisms should be referred to courts system.
This calls for the repeal of the laws that bar courts from arbitration of such cases. Labor-compliant courts should be established and backed by the legal framework in order to act as a trusted arbiter to most of the domestic workers grievances. Domestic workers who have reported any abuse should also be provided with the earliest opportunity to return to their own countries.
The government should also enact the legal system that prohibits the domestic workers employers as well as the recruiters from confiscating their employees passports and put serious penalties on those who have violated this regulation. The legal system should also put in place mechanisms for monitoring the compliance to this regulation as well as measures that should be taken to penalize those recruiters and employers that violate the regulation.
There is also a need for yearly based statistics about the nature and figure of grievances filed with various legal agencies as well as other departments dealing with domestic labor. The yearly bases records show how complaints are resolved and measures that have been taken against the violators of the regulatory laws.
The government should provide financial and any other support to the civil societies that shelter or work hand in hand with immigrant workers whose rights have been violated. However, the conditions of the civil society organizations of protecting the domestic workers must be within the international standards. Moreover, the civil society should be in the forefront in advocating for the rights of these workers.
The taskforce of domestic labor inspection should be created with a duty of ensuring that the working conditions for the domestic workers are within the law. The task force must also ensure that the employers are complying with the regulations that have been put in place. Generally the task forces main responsibility should be monitoring the legal compliance of the sector.
Finally, the governments are supposed to put in place stringent measures to check the excesses of the agencies dealing with the domestic labor. In the first step towards this mandate, the government should hire more staff to the department of domestic workers as well as any other government-created monitoring agencies. In addition, the government should also create clear guidelines that ensure accountability for any of the agency abuses of the laws put in place.
To the foreign countries whose nationals forms the domestic workers in Kuwait, the following recommendations are proposed. First, the foreign governments should promote and capacitate their embassies as well as the consulate in order to be capable of dealing with the problems of the domestic workers from their original countries.
Most importantly, the foreign embassies in Kuwait should provide assistance to the migrant domestic workers whose rights are constantly being violated by their employers and running away from the hash working conditions.
Secondly, information in regards to the contractual rights, the workers rights under the international labor organizations as well as any other information concerning the working conditions should be provided to the domestic workers either by the recruiting agencies or any other international organization dealing with domestic labor. The embassies should provide other assistances such as finance and easy access to travel documents.
Finally, the cases concerning the domestic workers abuses should be brought before the international organizations for further scrutiny by the embassies in these countries. Furthermore, embassies are supposed to be in places where foreign domestic workers who face criminal charges get protection and redress.
The international organizations such as the Gulf Cooperation Council (GCC), international labor organization (ILO) and the international organization for migration (IOM) should draft and promote the regional and international resolutions or uniform standards that provide protection to the domestic workers in line with the internationally acceptable labor standards and human rights.
These organizations should also offer technical advice on legal issues concerning domestic workers to the foreign governments together with the government of Kuwait. Moreover, these organizations should work with the Kuwaiti government in the implementation of the legal reforms as well as increasing the public awareness on the domestic workers labor rights together with other agencies that deal with labor issues.
Conclusions
From the report findings, it can be concluded that more than a half a million female migrant workers from South Asia and Africa working in Kuwait face numerous problems ranging from sexual and physical abuses to lengthy working hours without pay.
Majority of these workers are women whose main duties include taking care of the households, taking care of the children, cooking meals and cleaning homes. Even though they play an important role in these households, most of the employers take advantage of the weak legal system to abuse these workers.
More stunning is the lack of legal backing against these abuses. Contrary to the expectations, the Kuwait labor legal system does not recognize the domestic workers while the immigration laws forbid them from running away from their work. Additionally, the immigrant workers are prevented by law from shifting their occupations without their employers acceptance.
As a result, most of the foreign domestic workers who have been abused and reported the matter to the authorities have ended up being detained or deported without pay. The studies have also found out that most of the domestic workers have faced immigration charges as a result of fleeing from their employers abuses, running away, or changing jobs without their employers consent.
The report indicates that many domestic workers who have no chance of seeking legal redress over the abuses are constantly being deported by their various governments. In some instances, workers are forced to reimburse the recruitment cost in case they want to change their jobs. This is done through withholding the workers passports and employers consent to changing the employment. The employers are doing this in total disregard to the government regulations.
Basically, the Kuwaiti government should repeal the Aliens Residence Law articles that allow individual employers control over workers freedom of movement, immigration statuses and the freedom to terminate employment. Fundamental legal reforms should be that which is all-inclusive, implying the recognition of the foreign domestic workers within the Kuwaiti labor laws. These reforms should go beyond enactments and repeals to include the implementation of these laws to ensure equal rights for the domestic workers.
Therefore, if Kuwait fails to resolve the looming problems, it is likely to lose the official ties it has with the rest of the world. In fact, Kuwait needs to sincerely demonstrate to the international community that it takes the basic human rights into consideration and that it is committed to the protection of the domestic workers rights.
Works Cited
Motaparthy, Priyanka, and L. Sandler. Kuwait, Walls at Every Turn: Abuse of Migrant Domestic Workers through Kuwaits Sponsorship System. New York: Human Rights Watch, 2010. Print.
People are raised in different cultural setups. They learn different practices or customs for which they define their own values. Thus, their definition of ethical behavior or appropriate behavior, and personal opinions are influenced by their present or previous cultural setups or both. This is clearly illustrated when people debate on social concepts such as abortion, suicide, drug use, domestic violence and child abuse
Counselors are expected to be very ethical in rendering their services. However, it is very difficult to define what is right or wrong without inclusion of values. For instance, consider a case of abortion. A client may assume a prochoice approach whereas a counselor assumes a prolife approach.
These diametric perspectives can be a source of conflict between a client and counselor especially if a client feels during a counseling session. In such a case, a counselor is coerced to adopt value neutrality.
A counselor should be objective in handling his or her clients. Thus, value neutrality should be avoided because it jeopardizes the objectivity of the counselor.
Moreover, most known values, depending on the circumstances, are relative and are subjected to change i.e. an acceptable value can become an unethical or despicable behavior when certain circumstances change (Dolgoff, Loewenberg, & Harrington, 2011).
For example, a counselor should clearly state that domestic violence is wrong irrespective of the spouses cultural background or personality. This can be the only way to end such a vice.
Critics of the above approach argue that, a counselor should not express their values. This is because all situations are not equal and any form of opinion is likely to lead to unprecedented negative consequences. In addition, in the process of opinion expression, a counselor might be biased in a problem approach or may be subjected to stereotyping.
For instance, a case of child abuse over child discipline, whereby a parent uses a belt to hit or discipline a child, would be handled accurately with a nonjudgmental approach. Otherwise a parent may opt to immediately cease disclosing any other useful information to the counselor based on the counselors opinions.
A counselor needs to know when to be objective and when to subjective. He or she has to be attentive enough to the clients perspective and ask questions if necessary. Based on the presented facts, the counselor would decide which method is best to handle a client (Kuhse & Singer, 2006).
Counselors will refer clients to other counselors whenever they feel inadequate to help a client or when they have offered assistance to the client but the client shows no improvement. For example, cases of drug and substance abuse, a psychologist may refer a patient to a psychiatrist.
There are cases in which referral is an option. Such cases would require involvement of family members or close in assisting the clients. A counselor must use his or her skills to obtain this type of information from the client.
In conclusion, there is no single means of handling all counseling clients. However, a combination of methods can be deployed for any isolated case. Value neutrality should only be used where its necessary, otherwise it should be avoided.
References
Dolgoff, R., Loewenberg, F., & Harrington, D. (2011). Ethical Decisions for Social Work Practice. New York: Cengage Learning.
Kuhse, H., & Singer, P. (2006). Bioethics: An Anthology. Oxford: Wiley-Blackwell.