Auswahl der wissenschaftlichen Literatur zum Thema „Recognition and waiver of a procedural claim“

This article is Part II of a study on the effects of age discrimination in the workplace. In Part I, we considered the origins of the debate on age discrimination and looked at the demographic information that led to the passage of the Age Discrimination in Employment Act (ADEA) in 1967. In Part II, we raise an important question: Is age discrimination still a real problem? The article analyzes the Act through an application to two employment scenarios by looking at the scope of protection, amendments to the original law, the costs of age discrimination to employers, important exceptions to the ADEA, defenses to ADEA charges, procedures for filing an ADEA claim, and waiver provisions. In addition, the article looks carefully at procedural requirements for filing an ADEA claim, remedies available to an aggrieved party, and to questions relating to retaliation by an employer. Finally, the authors consider the question of employer liability for actions undertaken by employers and other parties which are found to be in violation of the law. In doing so, the authors provide answers to the questions raised in the scenarios described at the outset of the article.

Not always are a legal transaction and the legal consequences thereof limited to complete and voluntary fulfilment of the mutual obligations of the parties. In cases when a commitment has not been fulfilled, there is an option for a creditor to request for judicial protection in order to prove substantiality of his claim and to receive confirmation to his right to recover the debt in a form of court judgment. However, in the civil legal relationship such impairment of a right is possible which exists outside the dispute regarding the right. A debtor fails fulfilling his obligation and not denies doing it. In such circumstances, notwithstanding recognition of the debt, in order to achieve compulsory execution of the obligation, a document to be enforced is also needed. Provided the type of transaction allows establishing of such type of legal consequences, simplified procedural arrangements may be applied, and restricted principle of contest may result in the possibilities of procedural economy being exercised. Admissibility of such procedural possibility also inevitably activates the discussion regarding what the preconditions of the simplified procedure are and how the simplified procedure of establishing the debtor's obligation can be consistent with protection of his rights. The article focuses on the procedural legal principles, which are involved in the alternative to claim proceedings action of the expedited proceedings and the mutual coherency thereof. Attention is also paid to the form of the transaction and significance thereof in the simplified proceedings.

This publication discusses the question on “necessary” evidence assessable by the court in consideration of requirements of the consumer of financial services to insurance company regarding the seeking reimbursement of property damages resulting from an automobile accident. The author examines the question on recognition as “necessary” evidence a decision of a financial officer made after examination of the claim of a financial service consumer on violation of insurance policy obligations by the insurer, as well as materials obtained by the financial officer in examination of such claim. The theoretical research is based on application of the following scientific methods: systemic-structural analysis, synthesis, and comparative-legal analysis. The research substantiates the position that recognition as “necessary” evidence of materials collected by the financial officer in examination of a claim of a consumer of financial services on violation of obligation by a financial organization would contribute to a proper examination of an insurance dispute, as well as meet the goals of the procedural efficiency of the judicial process, since the requirement of these materials from the financial officer by the court will exclude the need for repeated submission of these materials during a hearing.

Resumen: Partiendo del reciente Auto del Tribunal Superior de Justicia de Madrid de 18 de abril de 2018, sobre reconocimiento de un laudo arbitral extranjero, se estudian los problemas del valor pro­batorio de los laudos como documentos privados extranjeros, la competencia judicial internacional de los Tribunales españoles para resolver el exequatur en esta materia y la validez de la subsanación de la demanda de reconocimiento. También se hace una propuesta sobre la traducción de los documentos que deben acompañar a la demanda.Palabras clave: reconocimiento de laudo arbitral extranjero, valor probatorio del laudo, competen­cia judicial internacional en cuanto al exequatur, subsanación de la demanda, traducción de documentos.Abstract: Based on the recent decision of the Superior Court of Justice of Madrid of April 18, 2018, on the recognition of a foreign arbitral award, the problems of the probative value of the awards as foreign private documents, the international jurisdiction of the Spanish Courts to know about its exe­quatur and the validity of the fault rectification of the demand on exequatur are analysed. A proposal on the translation of the documents that must be attached to the claim is also made.Keywords: recognition of foreign arbitral award, probative value of the award, international juris­diction on exequátur, fault rectification of the claim, translation of documents.

Abstract The case against Ahmad Al Faqi Al Mahdi marked the first prosecution and conviction for acts of destruction of cultural heritage before the International Criminal Court (ICC). Therefore, for the first time, the ICC recognized that although the crimes were committed against buildings and property, individuals and communities harmed by this destruction were victims who could participate in the proceedings and receive reparations. Using the Al Mahdi proceedings as a case study, this article examines how the prosecution of the destruction of cultural heritage, and also the reparations proceedings, were influenced by human rights considerations. This article concludes that human rights considerations influenced the Chamber’™s reparations decision in the Al Mahdi case, particularly in regards to the victims’™ recognition, participation and ability to claim a reparations award. However, the article argues that procedural and human rights considerations were not extended equally to the convicted individual and fell short of achieving an appropriate balance of rights.

This study is devoted to the analysis of Slovak restructuring law limited to the interpretation of § 124 sec. 6 ZoKR. The provisions of Slovak law in relation to claims reported but not recognized in the restructuring proceedings allow creditors to bring legal action against the debtor, under the so-called incidental action. The effects of the court’s decision issued after conducting such proceedings are set out in § 124 sec. 6 ZoKR. The content of the study presents arguments for the thesis that the term “ne mozno voci dlznikovi vymahat”, as used in § 124 para. 6 ZoKR, carries a substantive effect of the expiry of the claim, but as a result of the court’s recognition of the case in an incidental proceedings by virtue of the general procedural rules, it appears – the state of res judicata. From the provision of § 124 para. 6 ZoKR it should be concluded that by the end of the incidental process, the state of lis pendes is updated.

The article analyzes the changes in the conceptual and categorical apparatus of the sciences of the criminal-legal block in connection with the updating of the criminal and criminal procedural legislation of Ukraine. Reforming of criminal and criminal procedural legislation in Ukraine, normative introduction of new terms has created a certain cognitive dissonance in the system of concepts and categories, which negatively affects both law enforcement activities and research of legal phenomena. It is noted that the normative introduction of new categories into circulation without proper theoretical justification generates a number of contradictions in solving many problems of criminal proceedings. The necessity of bringing the concepts and categories of the branch and applied sciences of the criminal-legal block to a systematic nature is stated, which is the key to making correct procedural and tactical decisions in the course of criminal proceedings. The conclusion is formulated that the conceptual-categorical apparatus acquires the qualities of systematic and consistency only when the process of forming concepts and categories consistently goes through all the stages – from theoretical hypotheses (sentences) to their practical testing and legalization. The development of the conceptual and categorical apparatus of the sciences of the criminal law block (its system and consistency) is an important tool of cognitive activity in research and in the practical activities of criminal proceedings. As experience shows, it is inevitable to avoid gaps and contradictions in legislation and scientific concepts, which put, in particular, pre-trial investigation bodies, in a dead end and cause dubious decisions in the conditions of adversarial process. The stated position, of course, concerns certain problematic concepts and categories, does not claim the status of absolute truth and recognition and is an invitation to further analysis of this issue.

"The Romanian administrative litigation is distinguished by the lack of unity of opinion on the passive procedural quality and, at the same time, by the existence of an ingrained custom – the possibility of suing the issuing body of the administrative act, as the sole defendant, – a custom currently lacking a particular legal basis. Starting from these premises, the study investigates at a conceptual level and from a diachronic perspective, the evolution of the defendant” in the administrative litigation, concluding that it is necessary to abandon the described custom. The passive procedural quality of the issuing body, even without legal personality, was justified by the doctrinal recognition of the theory of restricted legal capacity (or administrative law capacity) developed by Professor Ilie Iovănaș half a century ago. However, this theory was preceded by a succession of regulations, doctrinal opinions, and jurisprudential solutions, which, on careful analysis, contradicted it rather than substantiate it. Thus, since the interwar period, a distinction has been made between administrative bodies with legal personality and those without legal personality, the general conclusion being that legal personality is the only basis for passive procedural quality. In its absence, the administrative bodies (or, more precisely, the natural persons who held the leading position within them) could stand in court only as representatives of the legal person under public law – the state, the administrative-territorial units, the public establishments. But, even in the political-legal context created by Decree no. 31/1954 regarding natural and legal persons and by Law no. 1/1967 of the administrative contentious, the passive procedural quality was inextricably linked to the legal personality of a public law entity, because regardless of the claim made by the plaintiff, at least one of the defendants had to be a legal entity: insofar as the issuing body the defendant did not have legal personality, it could stand trial only in procedural co-participation with the legal person who ensured its existence (the one that which it depended from a patrimonial point of view). Moreover, in the event of the existence of an appeal for damages, procedural co-participation was necessary because, from a legal point of view, it is inconceivable that an entity without its own patrimony could be legally obliged to satisfy a patrimonial claim made by another legal subject. In conclusion, at the time of its creation, the theory of restricted legal capacity was developed by Proffessor Ilie Iovănaș to substantiate the sufficiency of the concept of administrative capacity (part of legal capacity, along with the civil one) to justify the passive procedural quality of the issuing body. However, with the political-legal changes of 1989, the foreground is suddenly occupied by the concept of unitary local authority a legal person under public law having its own patrimony, the administrative bodies being, at the same time, “depersonalized” (deprived of their legal personality) by their conceptual rethinking. However, in order to justify the passive procedural quality of the issuing body, the doctrine and the jurisprudence are continuing to use the theory of (restricted) administrative capacity, introducing the concept of administrative/public authority through successive laws on administrative litigation facilitating the preservation of this unfortunate custom. Currently, the legal basis that the Romanian doctrine uses to legally substantiate the theory of administrative capacity is related to the notion of public authority, as it is defined by art. 2 para. (1) letter b) of Law no. 554/2004 of the administrative contentious, and then used in the provisions of art. 1 and 13 of the same normative act. This theoretical construction is at least debatable: on the one hand, the notion is incoherent, a source of ambiguity in itself because it unjustifiably (and unfoundedly) assimilates an entity with full legal personality (private law) to one without legal personality (public law), ruining any attempt to bring order in this matter. On the other hand, the inadequacy of that concept results from the fact that it does not resolve all the situations in which, in practice, there would be a need to determine the issuing body of an administrative act. Consequently, taking into account the fact that any type of capacity, regardless of whether it is a material or procedural law, cannot exist, in theory, outside the legal personality, because each type of capacity is only a part of the juridical capacity (general), and the fact that any exception to this capacity must be expressly provided for by law (a procedural one, in the case of the capacity to stand as a defendant before the administrative court), it is undoubted that the only solution theoretically correct and practically risk-free for the plaintiff would be that, regardless of their concrete claim in court, the legal person of public law whose body issued the illegal act, the one that has the power to resolve the plaintiff’s claim must havepassive procedural capacity . This solution is also in line with the principle of security of legal relations (clarity and predictability of the law), especially since a legal person under public law can be recognized as issuing authority. This solution is based, on the one hand, on the provisions of the Romanian Civil Code (art. 218, 219, 221) which, acquiring applicability in the matter of administrative contentious pursuant to art. 28 of Law no. 554/2004 and assimilating from specific points of view the legal person of public law with that of private law, subjecting to the rules of the mandate the relations between the legal person and its bodies, and, on the other hand, those of the Romanian Administrative Code, given that the notion of administrative capacity acquired today, through art. 5 letter o) of the Romanian Administrative Code has an entirely different meaning."

In this article the author examines the general theoretical problems associated with the abuse of the right of a judge in the exercise of his discretionary powers in the framework of justice. The author considers the category of “abuse” through the categories of “good faith”, “interest” and “impartiality”. The author substantiates the claim that the judge's interest in the case does not imply his lack of impartiality. The article states that a significant change in the direction of criminal proceedings from national values to the recognition of the individual, his rights to individuality and self-realization has led to the development of procedural contradictions caused by the collision of the traditions of domestic criminal proceedings with innovations borrowed from the Anglo-Saxon adversarial process. In order to determine the optimal ratio of judicial discretion and its limits in criminal proceedings, as well as to prevent abuse by the court, the author has developed proposals to consolidate the principle of good faith of participants in criminal proceedings and the definition of abuse in the exercise of court rights.

The subject of paper deals with the legal nature of measures of criminal procedural compulsionin the form of seizure of property.Methodological basis of the article is based on general scientific dialectical methods of cognitionof objective reality of the legal processes and phenomena that allowed us to conduct anobjective assessment of the state of legislation and law enforcement practice in the proceduralaspects of the cancellation of the seizure of property in criminal proceedings of Russia.The results and scope of it’s application. It is submitted that the cancellation of the seizureof the property (or the individual limit) is allowed only on the grounds and in the mannerprescribed by the criminal procedure law of the Russian Federation. However, the studyfound serious contradictions in the application of the relevant law. In particular, cases inwhich the question of exemption of property from arrest (exclusion from the inventory),imposed in the criminal case was resolved in a civil procedure that, in the opinion of theauthor of the publication, is extremely unacceptable.On the stated issues topics analyzes opinions of scientists who say that the dispute aboutthe release of impounded property may be allowed in civil proceedings, including pendingresolution of the criminal case on the merits. The author strongly disagrees with this positionand supports those experts who argue that the filing of a claim for exemption of propertyfrom arrest (exclusion from the inventory) the reviewed judicial act of imposing of arrestwithout recognition per se invalid. In this regard, the author cites the legal position ofthe constitutional Court of the Russian Federation, from which clearly follows that of theright of everyone to judicial protection does not imply the possibility of choice of the citizenat its discretion, techniques and procedures of judicial protection, since the features of suchjudicial protection is defined in specific Federal laws.The author analyzes and appreciates Kazakhstan's experience of legal regulation of the permissibilityof filing a civil claim for exemption of property from seizure imposed in criminalproceedings. The author notes that the new civil procedural legislation of the Republic ofKazakhstan, which came into force from 01 January 2016, clearly captures that considerationin the civil proceedings are not subject to claims for exemption of property from seizureby the criminal prosecution body.Conclusions. Necessity of amendment to article 422 of the Civil Procedure Code of Russia:this article should not apply to cases of application of measures of criminal procedural compulsionin the form of seizure of property. Among other things, the author proposed additionsto part 9 of article 115 of the Criminal Procedure Code of Russia.

Recognition and waiver of a procedural claim Abstract The thesis deals with the institutes of recognition and waiver of a procedural claim, which are a specific way of ending of court proceedings based on a dispositional act of concerned procedural party. The purpose of the institutes of recognition and waiver of a procedural claim is, in particular, to speed up the proceedings and save costs to both the state and the parties, in a situation where there is no longer a factual dispute between the parties and yet the parties have an interest in authoritative acknowledgment of such situation, unlike, for example, the institute of withdrawal of the action, which does not constitute an obstacle of rei iudicatae. The first chapter contains a general theoretical background of the thesis, definitions of basic terms and differentiation from similar institutes such as the mentioned withdrawal of the lawsuit or a court settlement. The first chapter also compares the differences between material recognition and waiver and their consequences. The following second chapter then contains a historical review of the regulation of the recognition and waiver of procedural claims institutes on our territory. The review begins with the Civilian Procedure Code from 1895, then deals with the Civic Procedure Code from 1950 and the...

This chapter is a review of the basic arguments against religious arbitration. “One Law for One People” argues that allowing any private law is bad. A second argument is that religious arbitration produces substantive injustice, and a related argument is that religious arbitration produces procedural injustices. Some argue that religious arbitration is often coercive and is used to entrench unjust power relations in religious communities, and others modify that to claim that religious arbitration cannot be adequately policed or regulated in liberal societies committed to religious freedom. Related to this is the claim that secular enforcement of religious arbitration violates disputants’ rights to freedom of religion and maybe even that secular recognition of religious arbitration promotes isolation and non-integration among religious communities.

This chapter examines the judicial review procedure, with particular emphasis on two issues: first, what judicial review procedure which claimants seeking a prerogative remedy are required to use; second, the extent to which a claimant seeking to raise a public law matter may avoid having to use the judicial review procedure by issuing a claim for an injunction or declaration. After providing a background on the origins of today's judicial review procedure, the chapter discusses the nature of the judicial review procedure and the impact of human rights claims on judicial review procedure. It also considers when the judicial review procedure must be used, focusing on procedural exclusivity, waiver of exclusivity, defensive use of public law arguments, and the connection between private law rights and public law.

Part III comprises two chapters, Chapter Five and Chapter Six. These chapters together investigate the decisions of WTO panels and the Appellate Body in environmental and health cases. The chapters examine the major contribution made through WTO dispute settlement to the emerging global regulatory standard of regulatory coherence. Specifically, Chapter Five analyses the elaboration of the ‘necessity’ formula in the GATT and the GATS general exceptions’ subparagraphs, as well as under the TBT and SPS Agreements. The WTO adjudicatory process appears to have been protecting the traditional procedural justification of international law’s relative authority claim by enabling respect for domestic decision-making through democratic processes. Members’ entitlement to choose their level of protection against a risk is still at present fully recognised and there is vital scope for recognition of the importance to WTO Members of long-term non-economic interests requiring a multifaceted policy response.