Peer to Peer (P2P)

           What is P2P and direction for use

File sharing is the public or private sharing of computer data or space in a network with various levels of access privilege. File sharing allows a number of people to use the same file or file by some combination of being able to read or view it, write to or modify it, copy it, or print it.

But how to do so? We all know that the internet is visited from more than billion user who are searching for information to download. With a searching facility, we could look into the hard drives of others and find whatever we want to download of them.

         Goal and problem with P2P

An important goal in peer-to-peer networks is that the remove the difference of information. Advance of internet was brought Compression of mp3 files, so we could share files. P2P service also have some good points. Than, why it has many problems in spite of its strong point? There are several major issues surrounding file sharing. Of these, the two most are centralization and decentralization, and the piracy and anonymity users. The latter takes on added importance when the legality of some file-sharing practices is challenged by copyrights owner. The third issues is the collection and sale of data about users, using software referred to by its detractors. In addition to P2P has the problem of hacking. Representative of P2P program is Napster and Soribada. If these program received an effect of viruse,our computer will helpless. Also many company will bankrupt because of illegal download.

Example of country's situation about P2P and its cases 

(1)    Hong Kong

Case: First ever that BT user (Chan) was charged by the HKSAR government on early April 2005, and since this was the first individual is charged by uploading materials via BT system, it was caught with much highlight.

(2)    Japan

Japan has copyright law to protect copyright on internet. As a court precedent, the event occurred in November 2001 that the man who exposed business software through file-swapping software, “WinMX” without permission of owners of copyright. Right of public transmission is the right that owner of copyright has to transmit own copyright work publicly or send copyright work transmitted publicly. In the axpose case, it was regarded as an illegal act to use such software as “WinMX” and exchage illegal file on the internet without permission of owners of copyright. It is said that, in the world, only Japan and Australia officially acknowledge that swapping illegal software is illegal.

28.11.2001  Two men (Win MX user) who are university student, arrested by Kyoto local police. This is the first time to be arrested by only using soft for file exchange in the world.

26.03.2002  The judgement decide that the older man has to pay a fine (¥ 400.000) and the younger man was sended to family court.

09.04.2002  File Rouge (a kind of hybrid type of P2P) are prohibited to provide service by Tokyo local court, but this is provisional dispotition. Their service is stopped in april 16.

29.01.2003  File Rouge lawsuit decide at Tokyo local court. The operator of file rouge is MMO. Since MMO has been guilty, so MMO and its leader (Mr. Matsuda) have responsibilities to compensate for damages.

25.02.2003  Share stage (online storage service) user is arrested by the Kyoto local police. He is 31 tears old and he has illegal copies of game files (super Mario advance). He made 179 title upload. And the judgement decide by Kyoto summary court that he has to pay ¥ 300.000.

10.04.2003  Share stage user is arrested by the Kyoto local police. He was 18 years old and he exhibited his illegal files (music files).

27.11.2003  Winny users are arrested. One man was 42 years old, and the other man was 19 years old. This is the second time for users to be arrested in Japan.

17.12.2003  The Tokyo local court decided that MMO should pay about ¥ 67.000.000

10.05.2004  The developer of “Winny” is arrested. He is an assistant of a professor at Tokyo University.

30.11.2004  The judgement of Winny user lawsuit decide at Kyoto local court.

31.03.2005  An appeal hearing is decided at Tokyo high court. MMO’s appeal is rejected.

Kyoto local police has special section which deal with only internet crimes. So almost all suspected person of P2P are arrested by them.

(3)    China

China’s Copyright Law followed the world trend in the protection of author’s rights. The purpose of the law focused on protecting the copyright of authors’ literary, artistic and scientific works and the rights related to copyrighting. The rights protected can be sub-divided into two categories : personal right and property rights. China copyrights law just contains a few articles concerning the internet and has not yet had any definite provisions concerning copyrighting in cyberspace and in p2p. until now there is no case and rule about p2p network.

(4)    Korea

Case: Soribada is file exchange service through a p2p technology cause an infringement of a copyright. Because each users can exchange original works without restriction through this program. In the last, a music company accused soribada representative of an infringement of a copyright at January 2001. stoppage provisional dispotition of a disk reproduction that MIAK (Mucic Industry Association of Korea) put was taken. So court ordered that soribada’s server 3 unit should never be used.

According to a court judgement, its an infringement af a right to reproduce of music producers that users downloaded a mp3 files and keep it. Soribada has responsibility that it assisted and helped an infringement of copyright. In response, soribada’s representative file a protest against a stop-use order. And it developed alternative program like ‘soribada ver.2, soribada ver.3’ for service stoppage provisional dispotition. Meanwhile, representative ‘Yang Jung- Hwan, Il-Hwan’ brothers were prosecuted without physical restraint and demanded 1 years imprisonment because of a suspicion thai it assist an offence against the copyright law at August 2001. but in May 2003, court dismissed a public acion because it is lacking that requisite that organize a criminal act.

Also the district court declare Yang brothers not guilty in a trial on an appeal case of a criminal suit at January 12^th 2005. The judge admitted thet the brothers infrigemenr on a right to reproduce and a right of forwarding. But according to a judge, ‘because no evidences that noticed an infringement of copyright, we can not charge them criminal liability.”

But in civil suit that did at the same time, a high court of justice accepted a provisional disposition law suit. So the court judge that the server-operation should stop. Because this law suit is in soribada Ver.1, it has not effect on Ver.3 directly.

The Role of Arbitration in Free Trade Area

Introduction

Arbitration plays important role in the international trade today. Most of contracts affecting international trade, and if contracts provide dispute arise under two country, dispute would be settled by arbitration. Using an arbitration should be based on an agreement between the dispute parties. The parties’ agreement could be given after the dispute happened and that agreement only limited by that dispute.

The reason why arbitration become popular in the way to settle disputes is by using this way disputes can be settled quicker and more satisfying, better than if we are using judicial settlement.

The Association of South East Asian nations (ASEAN) comprises ten countries, namely, Brunei Darussalam, Burma [Myanmar], Cambodia, Indonesia, Lao People’s Democratic Republic, Malaysia, Philippines, Singapore, Thailand, and Vietnam. ASEAN Free Trade Association (AFTA) is a body which acts in trade in South East Asia. This region had been abundant in trading activities including the famous spice trade. Disputes must have been regularly resolved.

At the present legal system of each country has developed from a past where the boundaries were not clearly drawn and with each phase of development a layer of influence that helped shaped the present legal system was added on. This essay is trying to examine the recent development in arbitration. This essay also examine dispute resolution framework is examined as regards the applicable law for contractual disputes, the enforcement of foreign judgments in general, and the framework for arbitration including the enforcement of foreign arbitral awards.

Recent Development in Arbitration[1]

Indonesia use Law No. 30 of 1999 as its Law on Arbitration and Alternative Dispute Resolution. Many of the superseded laws found its way back to the new law although there are a number of innovations, for example, the parties may apply to an arbitral institution for a binding opinion as to a point of law or the interpretation of a provision in their underlying agreement, even where no dispute has arisen. This service has long been offered by Badan Arbitrase Nasional Indonesia (BANI). Although New York Convention was ratified on 5^th January 1982 by Indonesia, it was not implemented until 1990 by the Supreme Court Regulation No 1 of 1990. Indonesia became a contracting state of the ICSID Convention on 28^th October 1968. The arbitral bodies include BANI, Indonesian Board of Arbitration, Indonesian Muamalah Board of Arbitration, and Indonesian Alternative Dispute Resolution Centre

In Brunei Darussalam, the applicable arbitration legislation is the Arbitration Act Chapter 173 1999 edition. It is a party to the New York Convention which came into operation on 23^rd October 1996 and it became a contracting state of the ICSID Convention on 16^th October 2002. There is no arbitral body in Brunei.

Burma/Myanmar’s arbitration legislation are the Arbitration Act 1944 (Burma Act IV, 1944) which came into force on 1^st March 1946 and the Arbitration (Protocol and Convention) Act (India Act VI, 1937) which came into force on 19 January 1939. However, Burma/Myanmar is not a party to both New York Convention and ICSID Convention. The Union of Myanmar Chamber of Commerce and Industries do provide arbitrators to the parties seeking help in appointment. However, the Chamber is not independent of the government.

Cambodian legal system traditionally encourages mediation over adversarial conflict and adjudication. Although there are plans to create a commercial tribunal and an arbitration and mediation body, the courts are now the only judicial forum to settle commercial disputes. There are no laws to require the courts to enforce a foreign arbitral award. Although Cambodia had signed the New York Convention in 1960, it has yet to implement the Convention. Cambodia is also not a Contracting State of the ICSID Convention. However, there is a bilateral agreement with Thailand on the promotion and protection of investment which provides for reference to international arbitration as well as to ICSID. The main arbitral body is Cambodia Centre for Conflict Resolution.

Lao People’s Democratic Republic have no arbitration legislation. However Article 21 of the Law on the Promotion and Management of Foreign Investment in the Lao People’s Democratic Republic provides for the submission of disputes to the economic arbitration authority of the Lao PDR or to any other mechanism for dispute resolution of the Lao PDR, a foreign country or an appropriate international organization which the disputants can agree upon. Laos is a party to the New York Convention. This came into operation on 15^th September 1998. However, it is not a party to ICSID Convention. The main arbitral bodies in Laos are the Lao Chamber of Commerce Arbitration Commission and a similar organization established by the Ministry of Finance.

Malaysian Arbitration Act 1952 is modeled on the UK Arbitration Act 1950. This was amended by the Arbitration (Amendment) Act 1979 (Act A 478) which excluded from the ambit of the Act, arbitrations held under the ICSID Convention, UNCITRAL Arbitration Rules and the Rules of the Regional Centre for Arbitration at Kuala Lumpur. A new Arbitration Act is being contemplated. Two models are being considered, namely the UK Arbitration Act 1996, and the NZ Arbitration Act 1996. Malaysia has ratified the New York Convention by the Convention on the Recognition and enforcement of Foreign Arbitral Awards Act 1985 (Act 320) which came into force on 3^rd February 1986 and the ICSID Convention by the Convention on the Settlement of Investment Disputes Act (Act No 14 of 1966). Malaysia became a contracting state of the ICSID Convention on 14^th October 1966. The main arbitral body is the Kuala Lumpur Regional Centre for Arbitration.

Philippines’ legislation is the Arbitration Law (Republic Act No 876) enacted in 1953 with special laws set out in Executive Order No 1008 known as the Construction Industry Arbitration Law. Although the Philippines ratified the New York Convention on 10^th June 1967, there is no law prescribing the procedure for the enforcement of foreign arbitral awards. There are two other arbitral bodies, namely, the International Chamber of Commerce (Philippines) and the Philippines Dispute Resolution Center Inc.

In Singapore the International Arbitration Act (Cap 143A 1995 Rev Ed) as amended by Act 38 of 2001 adopts the UNCITRAL Model Law. It also re-adopted the New York Convention which came into operation on 19^th November 1986. The legislation governing domestic arbitration is the Arbitration Act 2001 which is also based on UNCITRAL Model Law as well as the UK Arbitration Act 1996. Singapore has also enacted the Arbitration (International Investment Disputes) Act (Cap 11 1985 Rev Ed) as amended by Act 34 of 1992. The main arbitral bodies are the Singapore International Arbitration Centre, the Singapore Institute of Arbitrators and the International Chamber of Commerce.

In Thailand the Arbitration Act 2002, which replaced the 1987 Arbitration Act, adopted the UNCITRAL Model Law. The Act also re-adopted the New York Convention which came into operation on 20^th March 1960. Thailand, however, has yet to ratify the ICSID Convention although it has enacted the Convention Establishing the Multilateral Investment Guarantee Agency. The main arbitral bodies are the Thai Arbitration Institute and the Thai Chamber of Commerce.

There is no arbitration law in Vietnam. Vietnam is a party to the Bilateral Trade Agreement with the USA which provides that disputes between companies or persons of each country against the other, Vietnam, the USA or the company concerned may submit the dispute to ICSID or arbitration elsewhere as agreed.

Dispute Resolution Framework affecting ASEAN Countries

At the Bangkok Declaration, 8 August 1967, when ASEAN was born, the founding countries were Indonesia, Malaysia, the Philippines, Singapore and Thailand. Brunei Darussalam joined in 7^th January 1984 while Vietnam became a member in July 1995. Then, the Lao People’s Democratic Republic and Myanmar were made members on 23 July 1997.The last member was admitted into the association by the Declaration on The Admission of The Kingdom of Cambodia Into The Association of Southeast Asian Nations, 30^th April 1999.

Although there was a provision in the Agreement for the Promotion and Protection of Investment, 15 December 1987, disputes were settled in the ASEAN spirit. Essentially, the countries used the musyawarah and mufakat consensus to settle disputes before 1992.

In particular, Article X, paragraph 1 of the Agreement for the Promotion and Protection of Investment, 15 December 1987 provides that any legal dispute arising directly out of any investment between any Contracting Party and a national or company of any of the other Contracting Parties, it shall as far as possible be settled amicably between the parties to the dispute. If such a dispute cannot be settled within six months of its being raised, then either party can elect to submit the dispute for conciliation or arbitration and such election shall be binding on the other party. The dispute may be brought before the International Centre for the Settlement of Investment Disputes (ICSID), the United Nations Commission on International Trade Law (UNCITRAL), the Regional Centre for Arbitration at Kuala Lumpur or any other regional centre for arbitration in ASEAN, whichever body the parties to the dispute mutually agree to appoint for the purpose of conducting the arbitration.

Besides ASEAN, the countries in ASEAN may also be members of the Asia-Pacific Economic Cooperation (APEC) and/or the World Trade Organization (WTO).

APEC “is the only inter governmental grouping in the world operating on the basis of non-binding commitments, open dialogue and equal respect for the views of all participants.”[2]. It has no treaty obligations. Decisions are made by consensus and commitments are undertaken on a voluntary basis. APEC regards the WTO Dispute Settlement process as the primary channel for resolving disputes and supports this channel by helping to avoid disputes through non-adversarial and voluntary approaches. Seven out of ten members of ASEAN are members of APEC.

WTO is the only global international organization dealing with the rules of trade between nations[3]. Seven of the ASEAN countries are members of the WTO while three have the observer government status. Disputes are settled by the Dispute Settlement Body according to the Dispute Settlement Understanding, the main WTO agreement on settling disputes. There are also Rules of Conduct on the rules and procedures for settling disputes that were adopted in December 1996 and the Working Procedures for Appellate Review[4].

Conclution

The dispute resolution framework of each country may be found in its legal system including the applicable law relating to commercial activities, for example, the law of contract applied by the courts as well as the recognition and enforcement of judgments given by foreign courts. In addition, the existence of an arbitration regime that is alternative to dispute resolution by the courts including the applicable arbitration legislation and the recognition and enforcement of foreign arbitral awards under the New York Convention of 1958.

The state of each country in ASEAN as regards their dispute resolution framework as a state and a member of international conventions and groupings. It is found that in the last decade, a strong dispute resolution framework has been shaped and it continues to improve.

ASEAN countries have seen many changes taking place in the development of its dispute resolution framework based on the progress made in their respective legal systems and through ASEAN, APEC and WTO. Now as compared to a decade ago, the ten ASEAN countries are in a far better position to assure each other and ASEAN’s trading partners that an effective dispute resolution framework is put in place to cope with much greater economic activities.

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[1] www.soc.nii.ac.jp/jaie/2003Chan%20Paper.doc Dr. Phillip Chan, a Paper, Development of Disputes Resolution Framework in ASEAN Countries.

[2] http://www.apecsec.org.sg/apec/about_apec.htnl

[3] http://www.wto.org/english/thewto_e/whatis_e/whatis_e.htm

[4] http://www.wto.org/English/tratop_e/dispu_e/dispu_e.htm

Approval of Stem – Cell Research: Ethical Problems in Biotechnology

A revolution always colored by full of stir. James Thomson, a scientist from University of Wisconsin, United States, reported on November 1998 that he already made to separate cell from un-use embryo. It created a medical revolution which can recover the damage organ or body network.

There are so many cases, especially in medical practice, use a stem-cell therapy to cure the patients. Most of those therapies got their successful. If the stem-cell therapy can cure many diseases, why it deems controversial? Is not it a great thing that should be celebrated? Yes or no. There are so many scientists believe that stem-cell from human embryo demands a higher level of recovery hope better than one which taken from adult stem-cell. But for many people, a destruction process of human embryo to get stem-cell is something forgives less. So it becomes a subject of debate between ethical argument and science process.

People who is the most concerned to this science implication, is group that seeing an embryo as part of society who also has living right, but in a fragile position. They also said that taking cell from its embryo as same as cannibalism. This group reminds about the dangerous created the new world of “embryo farm” which produce human bodies spare parts. They argue that the scientists also can get same result by using adult stem-cell.

There are also countries against stem-cell practice. Germany has foreboded many research to stem-cell because it worries about the possibility of medical technology become slipped into unethical human experience. The other is United States, which put into effect a tight delimitation to the government fund, but bandage private sector to do anything to support this research.

The hardest refusal comes from Vatican, seeing that embryo’s stem-cell research as abortion.

From the supporting group said that it is not an ethic behavior to not support this research. If the parents of the embryo agreed to donate it for the purposes of mankind poverty, so why do not we keep this research go on? Embryo just a group of cell, and we can not put through it into trash or drain while this cell can support the science.

Countries such as England, China, South Korea, and Singapore have been made their selves to become the center of stem-cell research. They also provide fund and ethical control to support this research. More over, Singapore has a team consist of scientists and humanity representative to arrange an ethic guideline for this purpose. And also, the society invited to participate in this activity. So this policy has had the support from society widely.

It will be difficult to solve these ethical problems. But, in fact there are many countries in the world have some competition to finding the new type of cell to increase the quality of the cell. This research must be followed by many parties in the world, along with some amazing finding to the stem-cell ability. Many parties predict that with improving the research, a new variant of stem-cell will be found and will be fulfill the healthy needs of mankind.

Konsep Surat Kuasa Pengurusan Perizinan

SURAT KUASA

Yang bertanda tangan di bawah ini:

[nama], Direktur Utama, dari dan oleh karena itu berhak bertindak untuk dan atas nama [perusahaan], berkedudukan di [kota], berkantor di [alamat kantor]

- selanjutnya disebut Pemberi Kuasa

dengan ini memberikan kuasa dengan hak substitusi kepada:

[nama], [jabatan] dari [nama perusahaan], berkedudukan di [kota], berkantor di [alamat kantor].

-selanjutnya disebut Penerima Kuasa

KHUSUS

Untuk dan atas nama serta mewakili kepentingan Pemberi Kuasa, melakukan segala sesuatu yang berhubungan dengan pengurusan perizinan [jenis perizinan] di [nama instansi yang berwenang].

Berdasarkan hal tersebut di atas, maka Penerima Kuasa berhak mewakili kepentingan Pemberi Kuasa tersebut untuk melakukan hal-hal sebagai berikut:

1. Mengajukan dan atau menandatangani surat-surat permohonan dan atau permintaan yang diperlukan dalam pengurusan perizinan tersebut;
2. Menghadap pejabat yang berwenang;
3. Memberikan keterangan dan atau pernyataan-pernyataan yang berhubungan dengan pengurusan perizinan tersebut;
4. Melakukan pembayaran atas segala biaya yang timbul sepanjang menyangkut dari pengurusan perizinan tersebut serta menerima seluruh tanda bukti dan atau kwitansi atas pembayaran tersebut;
5. Menerima dan menandatangani tanda bukti dan atau tanda terima atas seluruh proses pengurusan perizinan yang dimaksud;
6. Selanjutnya mempertanggungjawabkan kemudian kepada Pemberi Kuasa.

 Demikian Surat Kuasa ini dibuat untuk dapat dipergunakan dimana perlu.


Jakarta, [tanggal bulan tahun]
Penerima Kuasa,                                                                                      Pemberi Kuasa,


[nama]                                                                                                     [nama]
[jabatan]                                                                                                  Direktur Utama

Tempatmu Di Hatiku

Bapak,

Kemanapun aku pergi dalam hidup ini, dengan siapa aku menikah, berapa banyak waktu yang kuluangkan untuk teman-teman priaku, seberapa besar aku mencintai pacarku, dirimu akan selalu menjadi pria     No. 1-ku.


Ibu,

Aku tidak akan selalu sepertimu. Terkadang kita beradu argumen dan bertengkar. Tetapi ada satu hal yang harus kau ketahui, bahwa aku mencintaimu selalu dan selamanya.

Penuh cinta,
Perempuan kecilmu.