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Journal articles on the topic 'Law applicable to the merits'
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1
Silberman, Linda, and Franco Ferrari. "The Law Applicable to the Merits of the Dispute." Revista Brasileira de Arbitragem 7, Issue 26 (June 1, 2010): 73–121. http://dx.doi.org/10.54648/rba2010024.
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ABSTRACT: This paper critically examines in depth the various approaches that have been resorted to by arbitral tribunals to determine the law on the basis of which to address the substantive issues of a dispute. It shows that a conflict of laws analysis is necessary even where the parties to the dispute have chosen the applicable law and suggests normative solutions for ascertaining the applicable law. It also addresses, however, the consequences of an erroneous choice of law decision by the arbitrators in the context both of annulment and recognition and enforcement of arbitral award.
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Lando, O. "The law applicable to the merits of the dispute." Arbitration International 2, no. 2 (April 1, 1986): 104–15. http://dx.doi.org/10.1093/arbitration/2.2.104.
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Graziano, Thomas Kadner. "THE LAW APPLICABLE TO PRODUCT LIABILITY: THE PRESENT STATE OF THE LAW IN EUROPE AND CURRENT PROPOSALS FOR REFORM." International and Comparative Law Quarterly 54, no. 2 (April 2005): 475–88. http://dx.doi.org/10.1093/iclq/lei008.
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The choice of law-rules for contractual obligations is harmonized in the European Union and the system established by the Rome I-Convention has proved its merits.1 The choice of law rules for tortious or delictual liability, on the contrary, is still largely left to the national legislators and courts2 and they differ very much from one country to the other. Two Hague Conventions cover particular issues.3 Neither of them is in force in the UK.
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K.S, Harisankar. "International Commercial Arbitration in Asia and the Choice of Law Determination." Journal of International Arbitration 30, Issue 6 (December 1, 2013): 621–36. http://dx.doi.org/10.54648/joia2013040.
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The article essentially deals with the choice of law process associated with three principal aspects of applicable laws in international commercial arbitration, namely, the law governing arbitration agreements, the law governing arbitral procedure and the law governing the substantive merits of the dispute. This research is of significance as these different aspects of arbitration (the agreement, the procedure and merits of the dispute) are commonly subjected to different laws. As a precursor, the introductory part of this article discusses the evolution and present position of international commercial arbitration in the region. The following chapter sets out the basic interaction between private international law and international commercial arbitration, as well as an overview of the choice of law process, which by and large is treated as the essential stage of a conflict of laws methodology. This section of the article gives a brief sketch of the conflict of laws system in ascertaining the applicable laws relating to the three elements of an international arbitration process, placing a focus on different approaches adopted by some of the more important arbitral-legal systems in Asia. As a disclaimer, the other two important questions of private international law, jurisdiction and enforcement of foreign awards, are not part of this discussion.
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Kabrera, Yuliia. "CHOICE OF THE APPLICABLE SUBSTANTIVE LAW BY THE PARTIES TO THE MERITS OF THE DISPUTE." Knowledge, Education, Law, Management 1, no. 3 (2020): 213–26. http://dx.doi.org/10.51647/kelm.2020.3.1.35.
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Pereyó, José. "A Bridge too Far." Revista Brasileira de Arbitragem 9, Issue 36 (December 1, 2012): 90–119. http://dx.doi.org/10.54648/rba2012064.
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ABSTRACT: Recent case law from arbitration laden jurisdictions has reignited the discussion of an arbitrator's ex officio application of the law when the parties have chosen the law applicable to the merits of the dispute, but have not invoked certain legal arguments during the arbitral proceedings. Specifically, this survey analyzes the issue of an arbitrator's ex officio application of the law from the perspective of the maxim iura novit curia and foreign mandatory rules in order to ascertain whether the recourse to these two tenets by way of analogy are appropriate in the context of international commercial arbitration.
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Dimolitsa, Antonias. "The Equivocal Power of the Arbitrators to Introduce Ex Officio New Issues of Law." ASA Bulletin 27, Issue 3 (September 1, 2009): 426–40. http://dx.doi.org/10.54648/asab2009042.
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Arbitrators have certainly the power – not the obligation – to ascertain the contents of the applicable law. They have the discretion to introduce new issues of law, i.e. issues that are indeed new and that appear material to the disposition of the case, but they must be cautious in so doing to respect fundamental principles of international arbitration. The ILA Resolution 1/2008 provides valuable guidelines in this respect. Especially, arbitrators must give parties the opportunity to be heard on the new issues. The maxim ‘jura novit curia’, in a fully fledged manner, is not generally considered as applicable to arbitrators. The challenge for arbitrators when judging on the merits is to fairly accomplish their jurisdictional mission while respecting party autonomy.
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Baumert, Kevin A. "The Outer Limits of the Continental Shelf Under Customary International Law." American Journal of International Law 111, no. 4 (October 2017): 827–72. http://dx.doi.org/10.1017/ajil.2017.84.
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Abstract“Seldom has an apparent major change in international law been accomplished by peaceful means more rapidly and amidst more general acquiescence and approval,” Lauterpacht observed of continental shelf claims nearly seventy years ago. When considered today, this observation merits a caveat, as the question of how far the continental shelf extends into the sea is not yet fully settled. This article explores the customary international law applicable for determining continental shelf limits and also examines the legal procedures used by states to gain international acceptance of those limits.
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Tuba, Maphuti David. "Lodhi 5 Properties Investments CC v FirstRand Bank Limited [2015] 3 All SA 32 (SCA) and the Enforcement of Islamic Banking Law in South Africa." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 20 (March 16, 2017): 1. http://dx.doi.org/10.17159/1727-3781/2017/v20i0a1308.
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On 22 May 2015, the Supreme Court of Appeal (“SCA”) handed down a judgment in the matter of Lodhi 5 Properties Investments Cc v Firstrand Bank Limited [2015] 3 All SA 32 (SCA). This judgement considered whether the prohibition against the charging of interest on loan in terms of Islamic law (Shariah law) may be a defence for a claim for mora interest in term of a loan agreement. This note critically discusses the judgement in light of the approach adopted by the SCA with regard to addressing dispute arising from a contract that has Islamic law as a governing law. As this is the first case that came before the SCA in South Africa, this note critically analyses how this court discussed the applicable principles of Islamic law as applicable to the dispute between the parties. In particular, it questions the court’s assertion that a claim for mora interest has nothing to do with and is not affected by the Shariah law's prohibition against payment of interest on a loan debt. It also looks at the SCA’s approach (as a common law court) with regard to the enforcement of Islamic banking law principles. This judgement raises important issues regarding the enforceability of Islamic finance law and therefore merits discussion, in light of the continuing growth and expansion of Islamic banking and finance law in South Africa.
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Beheshti, Reza. "The absence of choice of law in commercial contracts: problems and solutions." Uniform Law Review 24, no. 3 (August 1, 2019): 497–519. http://dx.doi.org/10.1093/ulr/unz026.
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Abstract In a commercial contract with an arbitration clause, the parties may fail to determine any applicable law, in which case the arbitral tribunal is expected to identify the rules applicable to the merits of the dispute. A modern approach suggests that localizing legal issues originated from an international contract is inappropriate and that the tribunal should conduct an assessment to identify international or non-national rules or practices appropriate to the issues at hand. This approach, which grants the tribunal maximum freedom in choosing the applicable law with no reference to any choice-of-law rules, is adopted in a few institutional rules such as the Article 21(1) of the ICC Rules. This article seeks to introduce an evaluative framework informing the tribunal’s methodical task in identifying the most suitable legal regimes. The evaluative framework seeks to assess the relationship of legal doctrines to commercial considerations and expectations regarded by businesses. A significant issue that befalls the arbitrators is that of pleading, proving, and measuring monetary damages. Yet, damages have remained an issue that is inaccurately dealt with by arbitral tribunals. This article aims to examine the principles governing damages available to an innocent commercial party under significant legal regimes widely applied in international commercial arbitration in an attempt to offer guidance on which legal regime has provided the most appropriate set of principles reflecting the essential needs and interests of commercial parties.
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McDermott, Ronan, Charlotte Luelf, Laura Hofmann, and Pat Gibbons. "International law applicable to urban conflict and disaster." Disaster Prevention and Management 26, no. 5 (November 6, 2017): 553–64. http://dx.doi.org/10.1108/dpm-03-2017-0052.
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Purpose The purpose of this paper is to provide a comprehensive overview of the international legal framework governing urban crises arising from conflict, “natural” and technological disasters. Design/methodology/approach The paper deploys legal analysis to the most relevant bodies of international law pertaining to urban crises and systematically outlines the key legal issues arising. Findings International humanitarian law (IHL) and international human rights law (IHRL) provide important protections to vulnerable persons in both human-made and “natural” disaster settings. While the two bodies of law do not draw explicit distinctions between urban and rural settings, their various provisions, and indeed their silence on, crucial issues that would enhance legal protection in urban settings merit greater attention. Research limitations/implications The paper provides an overview of the sources of international law of most relevance to urban crises. Further research is required into how the urban environment influences their application concretely in urban settings. Practical implications In an era when international law is being challenged from many sources and attention is turning to the increasing potential for urban violence and vulnerability, this paper serves to sensitise the disaster management and humanitarian community to the relevance of international legal frameworks to its activities in urban settings. Originality/value This paper considers the most salient international legal issues arising during crises and compares and contrasts how the different bodies of international law (IHL and IHRL) address each of the kinds of crises (conflict, “natural” or technological disaster), respectively.
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BUDYLIN, S. L. "REVIEW OF PRELIMINARY INJUNCTION ORDERS IN U.S. COURTS." Herald of Civil Procedure 10, no. 6 (January 25, 2021): 177–92. http://dx.doi.org/10.24031/2226-0781-2020-10-6-177-192.
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Under American rules, a very important factor for a court to consider when granting a preliminary injunction is the likelihood of success on the merits. To estimate this likelihood, the court must of course decide which legal provisions are applicable the parties’ dispute. And if the court errs in interpretation or application of those provisions, a party may successfully appeal to a higher court! As a result, the legal questions that must be answered to resolve the dispute on the merits are sometimes hotly and at great length discussed on the preliminary injunction stage, with appeals up to the highest-instance court. The ratios stated by higherinstance court in decisions on preliminary injunctions often become decisive when the dispute is resolved on the merits. Moreover, after the highest court ruled on a disputable issue of law in the preliminary injunction discussion, continuing the dispute may become redundant. Knowing the facts of the case (even if they are not yet formally established by a court) the parties often can easily understand who loses and who wins. After that it normally makes sense to settle out of court instead of wasting time and money for the process, the outcome of which is practically predetermined. Because of that many court orders granting or denying preliminary injunctions are far from being just “run-of-the-mill” ones. They may be very important for the ultimate outcome of the case and often contain detailed arguments on disputable issues of law, sometimes taking dozens of pages.
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Taylor, Araba. "The Case of the Rustat Memorial – Does Duffield Pose all the Right Questions?" Ecclesiastical Law Journal 25, no. 1 (January 2023): 38–51. http://dx.doi.org/10.1017/s0956618x22000679.
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Two recent decisions of the Consistory Court have dealt with faculties for the removal of what is now called ‘contested heritage’. In Re Rustat Memorial, Jesus College, Cambridge, the faculty sought by Jesus College, Cambridge was refused. In Re St Peter, Dorchester it was granted on terms. As was observed by Ruth Arlow, Chancellor of the Diocese of Salisbury, in the latter case, each such application has to be taken on its own merits: As with all faculty petitions, contested heritage applications will arise in almost infinitely variable circumstances. There can be no question of a uniform approach to such cases. Each must be decided upon consideration of the unique set of facts applicable to it.
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Perka, Milena. "Problematyka zaskarżalności postanowienia w przedmiocie spisu inwentarza – w poszukiwaniu intencji ustawodawcy." Acta Iuridica Resoviensia 36, no. 1 (2022): 110–16. http://dx.doi.org/10.15584/actaires.2022.1.9.
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The article presents an analysis of the regulation concerning the possibility of challenging the decision on the preparation of the inventory. The procedure for the preparation of the inventory ends with the issuance of a substantive decision on the merits. Therefore, before the amendment of 2015, it was assumed, in accordance with the resolution of the Supreme Court of 23 August 2006, that Art. 518 of the Code of Civil Procedure (CCP) was applicable and the decision was subject to a suspensive appeal. Nowadays, after the change of the law in question, the provision of Art. 637 § 4 of the CCP is assumed to be directly applicable, as it states that am interlocutory appeal may be lodged against the decision on the preparation of the inventory. Pursuant to the provisions, the afore-mentioned appeal can be also lodged against a decision dismissing an application for making an inventory, a decision to reject an application for making an inventory, and a decision to discontinue the proceedings. An interlocutory appeal may also be filed against the decision to draw up a supplementary inventory. However, there is no last resort (cassation) appeal under the current law, nor was there any under the previous legal status. This follows directly from the content of Art. 519 1 § 4(3) of the CCP. However, it should be noted that the amendment of the provisions of civil procedure gave rise to a certain far-reaching doubt. The fact that the legislator deems an interlocutory appeal to be the appropriate mean of challenge in this case suggests that these decisions do not constitute decisions on the merits. On the other hand, if the legislator did not provide for a suspensive appeal as a means of recourse against decisions on issues related to the inventory, then limiting the admissibility of a last resort appeal would seem unnecessary.
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Cywicki, Kristian, and Michael Grose. "Pleadings or Memorials: Which Are More Appropriate for Construction Arbitrations?" BCDR International Arbitration Review 4, Issue 1 (July 1, 2017): 43–52. http://dx.doi.org/10.54648/bcdr2017004.
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Construction arbitrations present some unique challenges which, in turn, call for special attention to be given to devising an efficient arbitration process. One issue that arises in this regard is the time-honoured question of whether to adopt an approach based on pleadings (common law) or memorials (civil law). In addressing this question, the starting point should be to consider the applicable arbitration/institutional rules (if any) and, thereafter, the relative merits of each approach. Notwithstanding the respective advantages and disadvantages of pleadings and memorials, it is always advisable for the parties, their legal advisors and the tribunal to have regard to the specific challenges of each case, particularly those presented by construction arbitrations. Regardless of the respective pros and cons of pleadings or memorials, the adoption of one approach over the other cannot guarantee an efficient arbitration on its own.
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Luchena, Gracia. "Analysis of ECJ case law on discriminatory treatment of cross-border inheritance tax." Bratislava Law Review 1, no. 1 (October 1, 2017): 15–28. http://dx.doi.org/10.46282/blr.2017.1.1.66.
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Recently, the European Commission has launched a package which deals with issues of double taxation and discriminatory tax treatment in the area of inheritance and estate tax. In the paper the Commission discusses ten cases in which the European Court of Justice examined the inheritance tax rules of Member States. In eight out of the ten cases it concluded that the Member States in question breached EU rules on the free movement of capital and/or freedom of establishment. For example, on the 3rd of September 2014, the ECJ entered/made a judgment resolving that the Spanish Inheritance Tax should impose restrictions on the free movement of capital, one of the fundamental principles of the EU’s Single Market. Taking into consideration the merits of the case the Court of Justice finally concluded that the situations between resident and non-resident taxpayers or between goods located in Spain or abroad are comparable and that therefore the applicable tax treatment should be the same.
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Pasqua, Marco. "Authorisations to Emit Greenhouse Gases – A Conflict-of-Laws Perspective." Italian Review of International and Comparative Law 3, no. 2 (November 15, 2023): 409–29. http://dx.doi.org/10.1163/27725650-03020013.
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Abstract Within the framework of private climate litigation, where injured people bring civil claims concerning the liability of companies for the harmful effects of their polluting activities before domestic courts, this contribution investigates the role of authorisations to emit greenhouse gases under Directive 2003/87/ec (Emissions Directive), when they are not specifically part of the lex fori (law of the forum) and lex causae (law applicable to merits). A traditional way to consider greenhouse gas emissions permits in these disputes is via the rules of safety and conduct under the Article 17 of the Regulation (ec) No. 864/2007 (Rome ii). The author of this contribution considers that there may be a different reading of such rules, i.e. the interpretative elaboration of a unilateral conflict rule in the Emissions Directive, which would allow the authorisation issued by a State whose law is different than the lex fori and lex causae ones before the courts of EU Member States to be relied upon. Furthermore the authorisation, in circulating, carries with it the (possible) exempting effect under the civil liability rule of the State issuing the authorisation.
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Khadka, Chandra Bahadur. "Biot-Savart Law for Determination of Speed of Particle Beyond the Speed of Light." Indian Journal of Advanced Physics 3, no. 1 (April 30, 2023): 1–5. http://dx.doi.org/10.54105/ijap.a1035.043123.
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This paper presents the modification of Biot-Savart law that thoroughly put to calculate magnetic field at any point in the space due to motion of charge in a complete circuit and further applies to determine velocity of particle faster than the speed of light. The modified Biot-Savart law provides complete mathematical result as given by ordinary Biot-Savart law, but most importantly, do not involve the need of derivative, integration of line element. In order to derive the relation ( among electric field ( magnetic field (( of electromagnetic wave, Biot-Savart law is given by formula B= , Where be angle between direction of velocity v of moving charge and position vector of given point where magnetic field has to be determined. This formula is applicable to address the question of how is it possible to achieve velocity of particle in excess of C and to open a discussion towards a new way of acquiring speed of particle beyond speed of light, namely C , Although, there is popular statement "nothing can move faster than speed of light". In this highly controversial statement, the specific purpose is not to comprises the merits of existing Biot-Savart law, but rather to introduce a concise and careful reasoned account of Biot-Savart law to propagate particle faster than speed of light.
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Amaral, Guilherme Rizzo. "Burden of Proof and Adverse Inferences in International Arbitration: Proposal for an Inference Chart." Journal of International Arbitration 35, Issue 1 (February 1, 2018): 1–30. http://dx.doi.org/10.54648/joia2018001.
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This article addresses two subjects that are relevant to the finding of facts in international arbitration, namely, the burden of proof and the power of the arbitral tribunal to draw adverse inferences. Regarding the burden of proof, it shows that despite the existence of a general rule stating that the party making the allegation carries the burden to prove it, there are other factors – such as the applicable law to the merits or to the procedure – that may play a role in defining it. In circumstances where the party carrying the burden of proof is not able to discharge it without evidence that the opposing party possesses, the tribunal has the power to order the opposing party to produce said evidence. Non-compliance with the tribunal’s order calls for the drawing of an adverse inference, which is not a reversal of the burden of proof nor a lowering of the standard of evidence, but rather the filling of the gap left by the missing (non-produced) evidence by a complex gap-filler. This article explains the elements within such gap-filler and presents an original methodology (a step-by-step approach) for the drawing of adverse inferences, represented in an Inference Chart.
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PaviÇ, Vladimir, and Dragor Hiber. "Arbitration and Crime." Journal of International Arbitration 25, Issue 4 (August 1, 2008): 461–78. http://dx.doi.org/10.54648/joia2008034.
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Arbitration is usually regarded as a domain exclusively reserved for private law. Inevitably, however, certain criminal matters and allegations might creep into arbitral proceedings. The dispute itself could be fictitious, a screen for money laundering, or the underlying purpose of alleged consultancy might be bribery. Testimony or expertise offered before the tribunal might be false. In such cases, arbitrators can either address the criminal matters or turn a blind eye to them. Immediately, there is a dilemma whether the arbitrator?s duty to report, if any,overrides the principle of confidentiality of arbitral proceedings. It is submitted that arbitrators are a part of the judicial system and they fail to qualify for any privilege exception. When deciding issues of bribery, however, they are still faced with difficult issues of burden of proof and law applicable to illegality. The task of deciding on the merits becomes particularly difficult if they do not take the jurisdictional way to terminate the proceedings. In such a case, it might prove fairly difficult to avoid unjust solutions. Finally, false testimony may undermine the very foundation on which an award is based, yet it is not always clear which procedural mechanisms should be used to rectify such deficiency. This difficult dilemma is, however, for legislators and judiciary, rather than for arbitrators.
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von Bogdandy, Armin, and Ingo Venzke. "On the Democratic Legitimation of International Judicial Lawmaking." German Law Journal 12, no. 5 (May 1, 2011): 1341–70. http://dx.doi.org/10.1017/s2071832200017338.
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While the introductory contribution addressed the questions and definitions of our research into judicial lawmaking, this concluding chapter discusses strategies regarding the justification of international judicial lawmaking that our introduction sought to capture and that the volume set out to present. How can one square such lawmaking with the principle of democracy? A first response could be to negate the phenomenon. If there were no such thing as judicial lawmaking, there would evidently be no need for its justification. This response, though unconvincing, merits attention all the same because, according to the traditional and still widespread view of international dispute settlement, international decisions flow from the consent of the state parties to the dispute, both from the consensual basis of the applicable law and from consent-based jurisdiction. If state parties are democratic, then the presence of their consent should solve any legitimate question as long as the courts only fulfill their task of dispute settlement properly. This explains the emphasis that traditional schools of thought place on the cognitive paradigm and on the principle that judges are limited to applying the law to the dispute at hand.
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Burdina, Tetiana. "THE CONCEPT, ESSENCE AND SIGNIFICANCE OF INCENTIVES, APPLICABLE TO THE JUVENILES SENTENCED TO IMPRISONMENT." Visnyk of the Lviv University. Series Law 74, no. 74 (June 30, 2022): 166–75. http://dx.doi.org/10.30970/vla.2022.74.166.
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The article is devoted to the study of various approaches to understanding the concept, content, essence, purpose and significance of incentives in legal science. Therefore, in studying this legal category, which is interdisciplinary and complex, the author was based on the scientific positions of both Soviet and modern Ukrainian researchers, established in the general theory of law and such legal sciences as labor, administrative, criminal and criminal executive law. Consequently, the article highlights that the various scholars view incentives as an act of approval and recognition of merit; as a peculiar form of positive assessment and reward of useful (honest, lawful) behavior associated with excessive performance of one's duties; as a means of stimulating law-abiding behavior of convicts, which serves the purpose of their further correction and resocialization. The latter interpretation is quite broad and unanimously substantiated in the science of criminal executive law. Thus, in general, the stimulating value of incentives is emphasized, in particular, by such scholars as the representatives of the theory of law V. M. Baranov, O. V. Malko and O. O. Barabash, Soviet theorists of labor law O. I. Zaretska and S. S. Karinskyyi as well as Soviet and Ukrainian researcher of labor law O. T. Barabash, representatives of Soviet science of correctional labor law F. R. Sundurov, I. A. Tarkhanov, Y. M. Tkachevskyyi as well as Ukrainian theorist of criminal executive law O. M. Dzhuzha. Moreover, on the influence by the application the measures of incentives on the stimulation of law-abiding behavior of convicts and, consequently, their further correction and resocialization emphasize their attention such scholars in the field of criminal executive law, as Soviet researchers M. A. Yefimov, V. P. Artamonov, as well as Ukrainian scholars O. G. Kolb, P. V. Khryapinskyyi, N. B. Khlystova, N. V. Kolomiyets, Z. V. Yaremko. The author also adheres to this scientific position in understanding the nature, purpose and significance of the measures of incentives and believes that they are primarily intended to stimulate further law-abiding behavior of persons sentenced to imprisonment, including juveniles, with the purpose to correct and resocialize them, as well as prevention of further commission of new offenses both by the convicts themselves, to whom the measure of incentives was applied, and by other persons.
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Zelmenis, Jānis. "Definition of Tax Planning in the Case Law of the Court of Justice of the EU (ECJ)." SOCRATES. Rīgas Stradiņa universitātes Juridiskās fakultātes elektroniskais juridisko zinātnisko rakstu žurnāls / SOCRATES. Rīga Stradiņš University Faculty of Law Electronic Scientific Journal of Law 2, no. 23 (2022): 132–44. http://dx.doi.org/10.25143/socr.23.2022.2.132-144.
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The objective of the study is to analyse the current and past case law of the European Court of Justice (ECJ) regarding tax disputes based on the modern legislation of the EU countries and applicable international law to determine the concept and criteria for legal tax planning. This article provides an in-depth study of the well-known Cadbury Schweppes case (2006), including the decision of the ECJ, which laid the foundation for a new concept of examination and interpretation of tax disputes on the merits in general. The introduction of the concept of “wholly artificial arrangements” and their characteristics stipulated and determined the development of the entire field of tax planning for years to come. Other rulings of the ECJ following the case of Cadbury Schweppes have described in greater detail and more specifically the concept of “wholly artificial arrangements” under the influence of the practice of tax planning itself, determining what tax planning is legitimate and how exactly it should be distinguished from tax evasion and tax avoidance. Several research methods have been used in this study: comparative method, historical method, analytic method, inductive method. Keywords: European Court of Justice, freedom of establishment, notion of economic substance, tax disputes, tax planning, wholly artificial arrangements, tax evasion
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Carnevali, Ugo. "L’interesse di un giurista di <i>civil law</i> per la sentenza <i>Pescatore</i>: spunti per la comparazione tra i due sistemi successori sotto taluni fondamentali aspetti." Trusts, no. 4 (August 4, 2022): 720–25. http://dx.doi.org/10.35948/1590-5586/2022.158.
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Tesi La sentenza Pescatore non decide né in merito alla controversia tra le parti relativa all’eredità di Vincenzo Pescatore, né in merito alla legge che governa la successione. Decide solo in merito alla richiesta della vedova della pronuncia di una anti-suit injunction nei confronti dei figli di Pescatore. Ciò nondimeno la sentenza è di particolare interesse per un giurista di civil law perché in molti punti della motivazione essa presenta una comparazione tra il diritto inglese e il diritto italiano in materia di principi fondamentali del diritto delle successioni. The author’s view The Pescatore Judgement does not decide neither on claims concerning Vincenzo Pescatore’s inheritance, nor the question of the applicable law to the inheritance. It only decides on the widow’s claim of a anti-suit injunction toward Pescatore’s sons. Nevertheles the Judgement is of great interest to a civilian jurist. The Judgement deals in many passages with a comparison between English law and Italian law concerning some basic issues of the succession law.
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Osrečak, Jadranka. "ODREĐIVANJE VISINE NAKNADE ŠTETE U MEĐUNARODNOJ INVESTICIJSKOJ ARBITRAŽI S OBZIROM NA UTVRĐENU POVREDU I METODU IZRAČUNA." Pravni vjesnik 37, no. 2 (July 2021): 105–36. http://dx.doi.org/10.25234/pv/10178.
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International investment arbitration as an alternative dispute resolution mechanism for resolving disputes between foreign investors and host states is also a favourite dispute resolution for investors. It consist of three parts, all of which can be resolved separately. These are jurisdiction, merits and damages. Consequently, it is possible for a tribunal to render one, two or even three arbitral awards, depending on the tribunal decision to bifurcate/trifurcate the proceedings or not. This shows the complexity of each of the stages of the arbitration proceeding. The paper deals with the issue of reparation, specifically compensation for damage caused as the main form of reparation for damage. It gives an overview of the legal issues affecting the amount of awarded damages, the main methods for calculating damages, as well as the applicable case-law and statistics in relation to the legal issues and calculating methods. The paper argues that only a proactive and inclusive approach in respect to determining damages including a detailed fact analysis for legal qualification of the dispute and determination of the best damages assessment methods, can give satisfactory results.
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Larsen, Rasmus Kløcker. "Foreign Direct Liability Claims in Sweden: Learning from Arica Victims KB v. Boliden Mineral AB?" Nordic Journal of International Law 83, no. 4 (November 1, 2014): 404–38. http://dx.doi.org/10.1163/15718107-08304002.
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On 12 September 2013 what may be the first foreign direct liability claim in Sweden was filed in the County Court of Skellefteå, a court action reflective of a growing wave of civil liability suits in European jurisdictions to hold transnational corporations accountable for human rights violations and environmental damages. This article examines the feasibility of foreign direct liability claims in Sweden, focusing on enabling conditions with regards to jurisdiction, collision rules and applicable law, substantial legal basis, procedural and practical circumstances, and the theories by which parent companies can be held liable for negligence in supervising acts of subsidiaries and contractors. It is demonstrated that foreign direct liability claims on environmental damage are indeed possible in Sweden, albeit with considerable constraints, primarily of a procedural and financial character. The conclusion provides some cautious remarks on the merits of the claim against Boliden and the reform options available to a Swedish government committed to improving the access to justice for victims of violations perpetuated by Swedish companies, their subsidiaries and contractors.
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TODOLÍ SIGNES, ADRIAN. "EL ACCESO AL EMPLEO PÚBLICO A LA LUZ DE LA LEY 20/2021 DE REDUCCIÓN DE LA TEMPORALIDAD EN EL EMPLEO PÚBLICO. ESPECIAL REFERENCIA A LA VALORACIÓN DE LOS MÉRITOS." RVGP 22, no. 22 (June 1, 2022): 22–32. http://dx.doi.org/10.47623/ivap-rvgp.22.2022.02.
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La reciente aprobación de la Ley 20/2021 de reducción de la temporalidad en el empleo público supone la apertura de un proceso de estabilización de plazas en el empleo público. La ley diseña varios sistemas de selección del personal que accederá al empleo público mediante dicho sistema. En el presente trabajo se analiza la constitucionalidad del sistema puro de concurso diseñado por la norma concluyendo que el sistema diseñado cumple con los requisitos exigidos por el Tribunal Constitucional hasta el momento. En el trabajo también se analiza los límites jurisprudenciales en materia de valoración de méritos en los concursos y concursos- oposición aplicables a dichos sistemas de selección. Onartu berria den Enplegu publikoan behin-behinekotasuna murrizteko 20/2021 Legeak enplegu publikoan lanpostuak egonkortzeko prozesua ireki du. Sistema horren bidez enplegu publikora sartuko diren langileak hautatzeko hainbat sistema diseinatu ditu legeak. Lan honetan, arauak diseinatutako lehiaketa hutseko sistemaren konstituzionaltasuna aztertzen da, eta, ondorioztatzen denez, diseinatutako sistemak Konstituzio Auzitegiak orain arte eskatutako baldintzak betetzen ditu. Lanean, halaber, hautaketa-sistema horiei aplikatu behar zaizkien lehiaketa eta oposizio-lehiaketetako merezimenduen balorazioaren arloko jurisprudentzia-mugak aztertzen dira. The recent approval of Law 20/2021 on the reduction of temporary employment in public employment implies the opening of a process to stabilize positions in public employment. The law designs several systems for the selection of personnel who will access public employment through this system. This paper analyzes the constitutionality of the pure competition system designed by the law, concluding that the system designed complies with the requirements demanded by the Constitutional Court so far. The paper also analyzes the jurisprudential limits on the assessment of merits in competitive examinations and competitive examinations applicable to such selection systems.
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Zhang, Chenguo. "Enhancing the Standards of Civil Damages Remedies to Fight Copyright Piracy in International Trade? A Commentary on the Proposed TRIPS-Plus Damages Reforms in the Third Amendment to the Copyright Law." Journal of World Trade 51, Issue 1 (February 1, 2017): 131–58. http://dx.doi.org/10.54648/trad2017006.
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The proposed third amendment to PRC copyright law endeavours to enhance the standards of damages to fight piracy more effectively via a TRIPS-Plus approach. This includes, inter alia, reframing statutory damages, introducing punitive damages, and new evidence rules granting the right of information to right holders. Nonetheless, the inconsistency of the extra-compensatory rationales of civil damage with the principle of restoration enshrined in the traditional Chinese copyright regime risks causing difficulties for the Chinese courts in implementing the new rules. The new provision on the right of information on pirated goods is a significant weapon to combat piracy that, conversely, risks causing tension between copyright enforcement and data protection, in addition to jeopardizing the defendants’ and third persons’ rights to privacy. This article argues that the proposed higher protection standards of copyright enforcement in China should not remain solely written law. The Chinese courts need to develop applicable conventions for calculating damages, based essentially on investigation using objective criteria of how much compensation ought to be payable, which is also the basis of calculating reasonable statutory damages. In this regard, this article advocates considering the merits and demerits of compatible enforcement provisions in the US and EU, and, meanwhile, developing a unified minimum standard for all courts in China via accepted and consistent judicial practice and through persistent dialogue and interaction with the academic community.
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Gaião Santos, Nilo Sérgio. "Article: Environmental Exception and the Legitimate Expectations of Investors in Investment Arbitration." Revista Brasileira de Arbitragem 20, Issue 80 (March 1, 2024): 7–41. http://dx.doi.org/10.54648/rba2024001.
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The aim of this study is to examine the application of the protection of investor legitimate expectations in investment arbitration cases involving environmental regulations. On the one hand, States commonly maintain – and on occasions successfully – that their act are consistent as a legitimate exercise of their right to regulate. On the other hand, investors more commonly prevail by advancing claims based on the protection against expropriation and on the fair and equitable treatment clause, provided for in the applicable investment treaty. Both substantive standards involve the protection of investor expectations, albeit in distinct courses of action. In this context, the question to be assessed is whether, and if so to what extent, the legal notion of legitimate expectation has been a key factor to the outcome of environmental disputes between foreign investor and host States. To address this issue, we have selected nine awards on merits, issued between 2016 and 2022, representing the most recent case law in this subject. Our primary observation is that the notion of legitimate expectation did not prove to be decisive in awards favoring investors, thereby contradicting the prevailing common understanding. Investment arbitration; right to regulate; legitimate expectations; protection of the environment; environmental disputes.
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Cataldi, Giuseppe. "The Enrica Lexie Award Amid Jurisdictional and Law of the Sea Issues." Italian Yearbook of International Law Online 30, no. 1 (November 10, 2021): 167–90. http://dx.doi.org/10.1163/22116133-03001010.
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This article analyzes the Enrica Lexie Arbitral Award, first of all, in relation to international law issues concerning the application of the United Nations Convention on the Law of the Sea (UNCLOS). The article then focuses on the question of the functional immunity of the two marines, from the point of view of the Tribunal’s assertion of its incidental jurisdiction to deal with the matter, as well as of the Tribunal’s affirmation of the existence of a customary international law rule applicable in the present case. Both conclusions appear unconvincing, also in light of the role of the two marines on board a merchant ship. In any case, the fact remains that the judgment has the merit of finally putting an end to a long-standing dispute, to the satisfaction of the two parties involved.
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Kutsenko, Tatyana Mikhailovna. "On implementation of the models of judicial mediation in the administrative process." NB: Административное право и практика администрирования, no. 4 (April 2021): 48–54. http://dx.doi.org/10.7256/2306-9945.2021.4.37390.
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This article examines the possibility of implementation of the models of judicial mediation tested in international practice applicable to administrative disputes. Analysis is conducted on the models of judicial mediation, their merits and flaws. The author outlines the spheres and categories of administrative cases that may require judicial mediation, as well as provides original perspective upon the problem. The integration of mediation into judicial process is feasible not only as a separate procedure – a number of countries features such mediation technique as in-house-mediation, which represents a peculiar approach towards establishing dialogue between the parties to the case aimed at conflict resolution within the framework of judicial proceedings. The analysis of the existing points of view in scientific literature reveals the following criteria that ensure the possibility of implementation of conciliation procedures in the administrative process: absence in the law of a direct ban on the use of mediation procedures; absence of violations of public interest along with observance of the rights and legitimate interests of other parties; competence of the official to conduct conciliation procedure set in the regulatory framework; normative legal consolidation of the possibility of conducting conciliation procedure; strict adherence by the official to the objectives determined by their competence and professional activity (objective, subjective, territorial, and temporal).
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Acconci, Pia. "La "green economy" e la realizzazione dei diritti dell'uomo alla base dello sviluppo sostenibile." DIRITTI UMANI E DIRITTO INTERNAZIONALE, no. 3 (December 2012): 587–607. http://dx.doi.org/10.3280/dudi2012-003007.
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This article focuses on the relevance of the ‘green economy' for the promotion of human rights as the base of sustainable development, in light of major trends in international law. In June of this year, at the end of the UN Conference Rio +20 on Sustainable Development, States adopted a document - "The Future We Want" - which refers to the ‘green economy' as an economic model for the future. "The Future We Want" confirms the tendency towards the increasing involvement of private parties in international economic relations. However, complex policy issues concerning the interaction between economic and non-economic interests/concerns have arisen from current trends towards interdependence, liberalization and privatization. Some issues have brought about international disputes which are difficult to be settled, since the applicable principles and rules to the merits are insufficient and fragmented. As disputes owing to conflicts between economic and non-economic interests/concerns constitute a relevant investment and/or trade risk, all States need to promote the rapid settlement and prevention of such disputes. To this end, States and international organisations might increase the level of integration of non-economic concerns into international agreements concerning economic matters and adopt interpretative guidelines and clarifications of the existing rules.
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Rusakova, Ekaterina, and Edgar Dominguez. "The Extension of the Arbitration Clause to Non-Signatories: Lessons from Comparative Law." Legal Concept, no. 1 (April 2021): 144–54. http://dx.doi.org/10.15688/lc.jvolsu.2021.1.22.
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Introduction: is it possible for a legal entity or individual who has not signed a contract containing the arbitration clause to take precedence of initiating arbitration against the signatory legal entity or individual, or vice versa, to be involved in the legal proceedings by other persons? The paper discusses this issue and examines it from the point of view of several theories, within the framework of comparative law, accepted for the extension of the arbitration clause to non-signatories. The purpose of the research is achieved by solving a number of tasks: to identify recurrent cases when an arbitration agreement was extended to a party that did not formally sign any arbitration agreement; to analyze the scenarios where such extension was accepted in different jurisdictions, as well as the facts and legal basis for this. Methodology: the paper uses a comparative method of analyzing the legal framework and court decisions, and the arbitral awards from different jurisdictions allow us to understand the degree of acceptability of the theories related to the extension of the arbitration clause to non-signatories. The results of the research can be used to determine the key circumstances of arbitration – whether the non-signatory party can be included in the arbitration either being initiated or already commenced. Conclusions: although there are various legal theories that have created a number of possibilities for extending the arbitration clause, such theories have a greater or lesser degree of acceptance depending on the arbitration law adopted by each country, the agreement of the parties, the arbitration rules chosen by the parties, the applicable law to the contract and, in some cases, the arbitration law at the legal venue. In addition, it will be necessary to analyze whether the non-signatory party is actually a party to the arbitration agreement, the relationship on the merits of the dispute, the interest and participation in the performance of the contract, and the application of the principle of good faith.
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Stefanini, Elisa. "Publication of Clinical Trials Data: A New Approach to Transparency in the European Legislative Framework." Medicine Access @ Point of Care 1 (January 2017): maapoc.0000018. http://dx.doi.org/10.5301/maapoc.0000018.
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The European legislative framework is quickly moving towards transparency of the clinical trials data. The European Medicines Agency (EMA)'s Policy/0070, entered into force on January 1, 2015, marked a complete change of approach, moving from a reactive access, upon any interested parties' request, to a proactive publication of the clinical trials data. This approach will be further straightened with the entry into force of Regulation (EU) No. 536/2014 on clinical trials (CT Regulation), expected in 2019, following the activation of the European portal and database. The purpose of ensuring the transparency of the clinical trials data has to be balanced with compelling interests, including, in particular, the protection of the commercially confidential information (CCI) of the sponsors. The criteria to identify what data shall be considered as CCI and what specific reasons might be given by sponsors to support a request for keeping certain data confidential are not clearly stated by the applicable regulations. Moreover, European case law has not discussed this issue in the merits yet and, thus, no clarifications have been provided so far. This article intends to trace the development of the EMA's transparency policy, and make comparisons between the publication requirements under Policy/0070 and the CT Regulation, with particular regard to the issue of the protection of the sponsors' CCI.
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Croquet, Nicolas AJ. "The Import of International Customary Law into the EU Legal Order: The Adequacy of a Direct Effect Analysis." Cambridge Yearbook of European Legal Studies 15 (2013): 47–81. http://dx.doi.org/10.1017/s1528887000003001.
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Abstract The EU case law, embodied by the Racke judgment, constituted a normative compromise between the judicial treatment of international customary law and that of international treaties. Indeed, the lack of precision of an international customary norm would not prevent it from being assessed by the EU Courts on the merits of the case, albeit to a lesser degree of judicial review. The lack of precision of an international treaty provision would in contrast make it unenforceable on the facts of the case (subject to two exceptions and the doctrine of consistent interpretation), whereas when sufficiently precise, the treaty provision would be assessed in full by the EU Courts. In Air Transport Association of America, the Court of Justice projected onto the challenged EU secondary act a hybrid and alternative direct effect analysis, borrowed in part from the classical approach to direct effect and in part from the first branch of the direct concern standing requirement whilst also adopting an absolute manifest violation test due to an imprecision bias targeted at all international customary norms. The Court of Justice thereby disrupted this normative compromise: any international customary norm, provided that it or the challenged EU secondary act passes the hybrid direct effect test, would also trigger a marginal form of judicial review in validity review actions before the EU Courts, regardless of its nature and inherent qualities. This chapter aims to argue that the direct effect requirements, which emerge from the case law on the import of international treaties into the EU legal order, remain adequate to assess the judicial enforceability of ordinary international customary law in the EU legal system minus the requirement revolving around the broad logic and nature of the international customary norm. International customary norms should, accordingly, be assessed on the basis of the same direct effect criteria as those applicable to the Constitutive Treaties and EU secondary acts when assessing their relation to Member States’ national legal orders. However, the precision and unconditionality criteria ought to be appreciated with more flexibility with regard to the import of international customary norms in order to account for their unique normative character. The ‘express reference’ ‘implementation’ exceptions specific to the international treaty judicial context may also be transposed to the assessment of international customary law in validity review actions. The application of the doctrine of consistent interpretation to international customary norms and their use as interpretative tools before the EU Courts constitute judicial implications of the principle of primacy of international customary law binding upon the Union over inconsistent EU secondary acts.
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Bootvong, Parichart, and Than Dendoung. "Review Article: The Review of Legal Issues Related to the Impacts of Online Vacation Rental Platforms (OVRPs) on Vacation Condominium Rentals and the Hotel Industry in Thailand." Journal of Architectural/Planning Research and Studies (JARS) 15, no. 1 (September 3, 2018): 1–16. http://dx.doi.org/10.56261/jars.v15i1.154189.
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This article reviews the impact of Online Vacation Rental Platforms (OVRPs) on vacation condominium rentals and the hotel industry in Thailand and discusses the legal implications of the OVRP use. The literature reviews are providing explanations of Thailand’s laws involving OVRPs and exploring current connections between hotels, vacation condominiums and online rental platforms, using case studies and examples. We find that OVRPs provide short-term rentals in most vacation condominiums at popular tourist destinations in Thailand. According to the Thai Civil and Commercial Code, B.E. 2551, the owners of such properties have the right to lease their property, but rentals of less than 30 days constitute an infringement of the Hotel Act, B.E. 2547. Case studies from other countries suggest that OVRPs may have positive as well as negative impacts on the hotel industry, and may also generate indirect benefits for other industries such as tourism and real estate development. Increasingly, vacation condominiums in Thailand are attracting individual investors, many of them foreigners, for the short-term rental market via OVRPs. This development not only undermines the Hotel Act, B.E. 2547 but also poses various risks for hosts, guests, co-owners and potential condominium buyers – risks which are not currently addressed by applicable Thai law. Areas identified as requiring further research regarding the impacts and legal implications of OVRPs in Thailand include: (i) balance of positive and negative impacts of OVRPs on Thai economy and society; (ii) impacts of OVRPs on the vacation condominium market in Thailand; and (iii) merits of amending the legal issues to cover the OVRPs rentals.
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Cascardi, Michele, Christopher M. King, Daniel Rector, and Jill DelPozzo. "School-Based Bullying and Teen Dating Violence Prevention Laws: Overlapping or Distinct?" Journal of Interpersonal Violence 33, no. 21 (September 25, 2018): 3267–97. http://dx.doi.org/10.1177/0886260518798357.
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The most recent legislative attempts to curb violence in schools have been school-based dating violence prevention laws. In the previous decade, there was an increase in legislation designed to prevent bullying in schools; these laws now exist in 50 states. However, most anti-bullying laws provide an expansive definition of bullying that includes any type of peer aggression, harassment, or teen dating violence (TDV). Having several different state and federal laws aimed at curtailing multiple forms of aggression may produce confusion about appropriate intervention and disciplinary responses, requiring school districts to develop parallel sets of policies, educational curricula, intervention approaches, and reporting requirements for overlapping behaviors that can be simultaneously peer aggression, bullying, harassment, and TDV. We conducted a systematic search of applicable laws and systematically coded those we identified for relevant content (i.e., definitions, covered locales, protected groups, and personnel, procedural, preventive, and disclosure elements). Anti-bullying laws were typically more detailed than dating violence laws. TDV laws were more likely to target TDV and control intimate behavior and to provide for education about healthy relationships. Both types of laws often mandated trainings; specified reportable behaviors; discussed sanctions, recommendations, and interventions; and mentioned counseling, specially trained staff persons, or designated specialists. Both anti-bullying and TDV laws also sometimes directed reporting of aggregate incident rates and impacts of prevention efforts. Neither type of law tended to specify school and community resources or prevention approaches. Results inform discussion of the merits of different approaches to school-based violence prevention laws.
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Simma, Bruno. "FOREIGN INVESTMENT ARBITRATION: A PLACE FOR HUMAN RIGHTS?" International and Comparative Law Quarterly 60, no. 3 (July 2011): 573–96. http://dx.doi.org/10.1017/s0020589311000224.
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AbstractThe protection of foreign investment by way of treaties and arbitration has recently suffered attacks on its legitimacy. The article turns on human rights concerns in this context and analyses what legal mechanisms and arguments can be employed to ease the tension between investment protection and human rights. Harmonization in this regard finds two key entry points: first, at the inter-State level of investment agreements, and secondly, at the intra-State level of the foreign investment contract. At the first level, human rights considerations, particularly concerning economic and social rights, can be brought to bear by way of their systematic integration qua treaty interpretation. The article subjects this inroad to close scrutiny but concludes that, while it possesses considerable merits and has attracted a certain attention (albeit still more in the academic world than in that of arbitration practice), it remains an approach ex post, possibly leaving excessive discretion to arbitrators. Thus, at the second level, already at the pre-investment stage, efforts should be made to recast investors' “legitimate expectations” under foreign investment contracts by including a “human rights audit” as part of the due diligence to be conducted by the investor and the host State, to survey the host State's human rights treaty commitments and domestic methods for implementing these commitments. The primary objective of this audit would thus be to fully include the prospective host State's international obligations as part of the body of applicable law and thus create a better map of the landscape of an investor's “legitimate expectations”.
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Pazienza, Mariapia, Martin de Jong, and Dirk Schoenmaker. "Why Corporate Sustainability Is Not Yet Measured." Sustainability 15, no. 7 (April 6, 2023): 6275. http://dx.doi.org/10.3390/su15076275.
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Measuring Corporate Sustainability (CS) has been identified as an important enabler for integrating sustainability into corporate practices. Different methodologies and frameworks for measuring CS have been developed in the literature with limited success, as reflected by the lack of application in the real world. Among practitioners, the effort has been on developing frameworks that provide useful indicators of the different items that need to be considered for integrating sustainability. Notwithstanding the increasing attention and progress on the subject, a cohesive and applicable measure of CS across firms, industries and geographies is still missing. This paper provides an examination of the different methodologies for measuring CS, with an analysis of their merits and limitations, as well as guidance for future research focus. The findings show a failure to coherently link the mathematical measurement and data aggregation methodologies to a well-constructed concept where the linkage between the defining features and causal relations are appropriately identified. The proposed models and mathematical techniques are not able to inform on the extent to which a corporation acts sustainably because sustainability is not being measured in its highest extension, making the results narrow, non-referential and non-comparable. Furthermore, there is confusion between developing the indicators of CS, providing their measurement and enabling their integration.
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Croquet, Nicolas AJ. "The Import of International Customary Law into the EU Legal Order: The Adequacy of a Direct Effect Analysis." Cambridge Yearbook of European Legal Studies 15 (2013): 47–81. http://dx.doi.org/10.5235/152888713809813567.
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AbstractThe EU case law, embodied by the Racke judgment, constituted a normative compromise between the judicial treatment of international customary law and that of international treaties. Indeed, the lack of precision of an international customary norm would not prevent it from being assessed by the EU Courts on the merits of the case, albeit to a lesser degree of judicial review. The lack of precision of an international treaty provision would in contrast make it unenforceable on the facts of the case (subject to two exceptions and the doctrine of consistent interpretation), whereas when sufficiently precise, the treaty provision would be assessed in full by the EU Courts. In Air Transport Association of America, the Court of Justice projected onto the challenged EU secondary act a hybrid and alternative direct effect analysis, borrowed in part from the classical approach to direct effect and in part from the first branch of the direct concern standing requirement whilst also adopting an absolute manifest violation test due to an imprecision bias targeted at all international customary norms. The Court of Justice thereby disrupted this normative compromise: any international customary norm, provided that it or the challenged EU secondary act passes the hybrid direct effect test, would also trigger a marginal form of judicial review in validity review actions before the EU Courts, regardless of its nature and inherent qualities. This chapter aims to argue that the direct effect requirements, which emerge from the case law on the import of international treaties into the EU legal order, remain adequate to assess the judicial enforceability of ordinary international customary law in the EU legal system minus the requirement revolving around the broad logic and nature of the international customary norm. International customary norms should, accordingly, be assessed on the basis of the same direct effect criteria as those applicable to the Constitutive Treaties and EU secondary acts when assessing their relation to Member States’ national legal orders. However, the precision and unconditionality criteria ought to be appreciated with more flexibility with regard to the import of international customary norms in order to account for their unique normative character. The ‘express reference’ ‘implementation’ exceptions specific to the international treaty judicial context may also be transposed to the assessment of international customary law in validity review actions. The application of the doctrine of consistent interpretation to international customary norms and their use as interpretative tools before the EU Courts constitute judicial implications of the principle of primacy of international customary law binding upon the Union over inconsistent EU secondary acts.
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Tomažič, Luka Martin, Niko Lukač, and Gorazd Štumberger. "A New Regulatory Approach for PV-Based Self-Supply, Validated by a Techno-Economic Assessment: A Case Study for Slovenia." Sustainability 13, no. 3 (January 26, 2021): 1290. http://dx.doi.org/10.3390/su13031290.
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When it comes to the proliferation of photovoltaic (PV) systems, technological solutions have to go hand in hand with optimized policy approaches and regulatory frameworks. This paper proposes a new application of state-of-the-art PV potential estimation method based on Light Detection And Ranging (LiDAR) data targeted toward individual household self-supply. The performance of the proposed general approach is demonstrated in the case of Slovenian PV based self-supply (yearly net self-sufficient energy supply) scheme and related policy. The results obtained by PV potential assessment method show drawbacks of the current policy solution in Slovenia, which limits the installed peak power of the PV systems to 80% of the rated power supply. The paper proposes to change the policy in a way that increases the yearly energy production of the PV system and assures proper voltage profiles in the electricity network. The paper is novel in terms of considering PV potential over LiDAR data by also considering self-sustainability, in using such techno-economic analysis to validate the merits and demerits of a policy approach and is the first such case study used in the context of Slovenian self-supply policy. The proposed PV potential estimation method is generally applicable for any location and can be easily adjusted to the local regulatory framework.
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Ispolinov, Aleksei, and Olga Kadysheva. "An apple of discord: pre-trial procedure in international justice and in the jurisprudence of the EAEU Court." Meždunarodnoe pravosudie 11, no. 2 (2021): 93–110. http://dx.doi.org/10.21128/2226-2059-2021-2-93-110.
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The present article assesses the approaches elaborated in the decisions of international courts and tribunals as well as in the doctrine of international law towards the legal value of pre-trial requirements. The role and significance of such requirements started to increase since almost in any case submitted to a court or arbitration the respondent states try firstly to question either jurisdiction of the court or tribunal in the specific case or admissibility of the claim. As a rule, such objections are based on allegations that the claimant failed to comply with pre-trial requirements such as direct negotiations or prior notification of the respondent about the claimant’s intention to submit the dispute for compulsory adjudication. Despite an absence of customary rule of international law about the necessity and precise content of such pre-trial requirements, international treaties stipulating compulsory dispute adjudication almost by default contain such pre-trial requirements of different kind and combination. Current jurisprudence of international courts and tribunals (International Court of Justice, Court of Eurasian Economic Union, and investment arbitration tribunals) dealing with such objections by the respondents reveals a lack of consensus in the treatment of pre-trial requirements either as jurisdictional or admissibility objections. The commentators also differ on assessment of the role and normative significance of pre-trial requirement. Nevertheless, the authors view such requirements as one of jurisdictional characteristics based on the consent of the states to limits their sovereignty by agreeing in advance in the applicable international treaty to submit any future disputes for compulsory adjudication subject to stipulated limitations and conditions, for instance, necessity for a claimant to follow certain pre-trial requirements. A claimant’s failure to follow such requirements should be considered as sufficient ground for a court or tribunal handling such claim, to declare a lack of its jurisdiction in the case and to refuse to consider the merits of the case.
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Losier, M. M. "The Conflict between Sovereign Immunity and the Cargo of Sunken Colonial Vessels." International Journal of Marine and Coastal Law 33, no. 3 (August 22, 2018): 528–57. http://dx.doi.org/10.1163/15718085-12342189.
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Abstract Cloaking the cargo of sunken colonial vessels with flag State immunity creates pro tempore resolutions through procedural impediments that inevitably reward illegal acts, revitalize colonial policies and extend periods of unjust enrichment. Immunity should only be extended when conventional law requirements are met and applied in conformity with any rules applicable between the parties in light of present-day conditions. Absent immunity, States with verifiable links could argue merit-based claims in unbiased fora that could rely on modern legal principles, rather than those prevailing when the cargo sank, to adjudicate contemporary disputes. Merit-based resolutions would address the Pandora’s box resulting from the convergence of advances in underwater technologies and the socio-political shifts that occurred since the cargo sank. Historically inert pauses under water unique to other legal quagmires offer an inimitable opportunity, when immunity is restricted, to adhere to modern ethical principles and to halt the lingering effects of condemned regimes.
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Besson, Sébastien. "Arbitration and Human Rights." ASA Bulletin 24, Issue 3 (September 1, 2006): 395–416. http://dx.doi.org/10.54648/asab2006051.
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The impact of Human Rights, more particularly the European Convention on Human Rights, on arbitral proceedings is increasingly important. Thus, Article 6 (1) of the European Convention on Human Rights is applicable in the context of compulsory arbitration (arbitration imposed on the parties by law) and in court proceedings related to arbitration, notably setting aside proceedings. A more difficult question is whether this provision applies in the proceedings before the arbitrators themselves. This article concludes that it does. A distinct ? and also controversial ? issue is whether the States that have adhered to the Convention should enact specific rules in order to ensure that the arbitration process will respect the guarantees of Article 6 (1). In particular, should States provide for judicial review of the award in order to effectively ensure Convention rights? This question has a direct impact on the possibility to waive in advance any application to set aside the arbitral award (Art. 192 PIL Act). The author concludes that a clearcut answer is not possible and that the test is whether the exclusion of any application to set aside the award is ?arbitrary or unreasonable?. The author also addresses the question of the grounds (reasons) for the award (§ 21) and the alleged disqualification of an arbitral tribunal based on article 6 (1) of the European Convention on the ground that the arbitrators examined issues disputed on the merits in the context of a request for interim measures and would hence be biased (§ 29). In the conclusion, the article stresses that the scope of Article 6 (1) may be very broad and that this provision can no longer be ignored by arbitration practitioners.
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Crawford, Elizabeth B. "The Uses of Putativity and Negativity in the Conflict of Laws." International and Comparative Law Quarterly 54, no. 4 (October 2005): 829–53. http://dx.doi.org/10.1093/iclq/lei039.
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Putativity is a useful concept in the conflict of laws, allowing reference to be made to an outcome which was intended to have come about, but which has failed, as a result of human actings or divine intervention. To apply to something which is imperfect a consequence which would arise if it were perfect is justifiable on the pragmatic grounds of convenience, speed, and cost—and thence, through the merit of certainty, to the satisfaction (perhaps) of party expectation, or at least to the forestalling of disappointment. Reference to the putative applicable law may be permissible therefore on the ground of enabling a resolution to emerge, the more so if the result of so doing commends itself to the disinterested observer and to one, at least, of the parties; on the other hand, the result may disappoint the reasonable expectations of both parties. Whatever the rationale, it can be observed that use of the device is authorized at common law, by statute, in Convention, and Regulation. But if one does not ask whether this methodological technique begs the question, one begs the question.
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Sanchez, Jose F. "Applying the Model Law’s Standard for Interim Measures in International Arbitration." Journal of International Arbitration 37, Issue 1 (March 1, 2020): 49–86. http://dx.doi.org/10.54648/joia2020003.
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Commentators and practitioners regard Article 17A of the Model Law on International Commercial Arbitration as the international standard for interim measures in international arbitration. Practitioners apply Article 17A often, even when the jurisdiction whose law is relevant to the case has not adopted it as domestic legislation, and even in emergency arbitrations and in investment treaty arbitrations. To apply Article 17A correctly, however, practitioners must look at Article 2A(1) of the Model Law, which orders practitioners applying any Article of the Model Law, including Article 17A, to follow several mandatory principles of construction. Specifically, Article 2A orders practitioners to have ‘regard’ to the ‘international origin’ of the Model Law, ‘the need to promote uniformity in its application,’ and ‘the observance of good faith.’ Those principles of construction of Article 2A(1) have four specific and mandatory consequences on the application of the standard set forth in Article 17A, namely, that practitioners (1) must consider Article 17A’s travaux préparatoires, and must apply Article 17A in a way that does not contradict those travaux préparatoires; (2) must consider, but are not bound to follow, the publicly-available decisions by courts and arbitrators around the world that have applied Article 17A and the scholarly writings that have analysed it; (3) cannot construe Article 17A only under the canons of construction that they would apply to a domestic statute in the jurisdiction relevant to the case; and (4) must factor in equitable considerations. This article helps practitioners with the first two of those four consequences. Specifically, to help practitioners apply the standard for interim measures set forth in Article 17A uniformly and correctly, i.e. in a way that complies with Article 2A’s mandatory principles of construction, this article analyses the travaux préparatoires of Article 17A, the scholarly writings that have analysed that article, and the publicly available decisions by courts and arbitrators around the world that have applied it, including decisions issued by arbitrators acting for the International Centre for Settlement of Investment Disputes (ICSID), the Permanent Court of Arbitration (PCA), and excerpts of non-publicly available decisions issued by arbitrators acting for the International Chamber of Commerce (ICC) and the Stockholm Chamber of Commerce (SCC). For the reader’s convenience, this Article analyses the travaux préparatoires and applicable authorities separately for each of the following elements of Article 17A’s standard: burden of proof; urgency; likely harm not adequately reparable by an award of damages; balance of convenience; reasonable possibility of success on the merits; jurisdiction; and other elements and considerations. That analysis results in several principles of construction relevant to each element of Article 17A’s standard. The article ends with a chart – effectively a cheat sheet for practitioners – that lists those principles of construction for each element of the standard, and explains the rationale of those principles. It is the author’s hope that this chart will help practitioners apply each element of Article 17A’s standard correctly and uniformly. Interim measures, Conservative measures, Model Law, Article 17A, Article 2A, UNCITRAL Rules, Article 26, Emergency arbitration, Preliminary orders, Standard for interim measures, Conditions for interim measures, Standard for emergency arbitration, Standard for preliminary orders, Uniformity
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Schukin, Andrey I. "APPLICATION THE PERSONAL STATUTE OF A LEGAL ENTITY IN CIVIL CASES." Vestnik Tomskogo gosudarstvennogo universiteta. Pravo, no. 39 (2021): 225–41. http://dx.doi.org/10.17223/22253513/39/17.
Full textAbstract:
The decisions and activities of legal persons have consequences in many states, some-times giving rise overseas to disputes arising out of contracts, torts. The foreign element in such cases raises a number of difficult questions related to the legal status of the subjects of these relations: whether a legal entity created under the laws of one state is recognized as such in another state where it is engaged in economic activities; the laws of which state determine the legal capacity of a foreign legal entity? - etc. The answers to these questions may be found by means of the personal statute of a legal entity (lex societatis). The personal statute of a legal entity (lex societatis) is commonly referred to as the law, determined on the basis of a conflict of laws rule, to be applied to the totality of relations related to the legal entity and complicated by a foreign element, or at least to the main part of such relations. The application of the personal statute of a legal entity is relevant in civil cases in which at least one of the parties is a foreign corporation. This statute has to be resorted to in the case of a dispute on the merits, as well as in a number of other cases: determining the legal status of the disputing parties at the stage of initiation of the case and its subsequent resolution, checking the powers of the parties' representatives, etc. The court must examine the legal status of the corporation as a party to the proceeding before deciding on the applicable law. The purpose of this article is to analyze the practice of application by Russian courts the personal statute of a legal entity in resolving a number of procedural issues related to the determination of the legal status of the disputing parties, the verification of the credentials of the parties' representatives. The article provides an analysis of the content of the mentioned conflict of law norm, which is designed to help courts in their activities. The improvement of the investment climate in the state, the attractiveness of the national jurisdiction for economic activity, the stability of the civil turnover in general depend on the effective protection of the rights and legitimate interests of participants in corporate conflicts through justice. The study of features of the judicial form of protection of violated rights and interests in the light of the foreign element is of enduring theoretical and practical importance.
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Ulfah, Maria, and Dewi Prastiwi. "POLICY ANALYSIS AND IMPLEMENTATION OF MUTATION AND EMPLOYEE PLACEMENTS ON PERFOMANCE AND CAREER DEVELOPMENT." Jurnal Tata Kelola dan Akuntabilitas Keuangan Negara 6, no. 2 (December 28, 2020): 143–62. http://dx.doi.org/10.28986/jtaken.v6i2.432.
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This study aims to assess the effectiveness of employee mutations and placements applied to several institutions in Indonesia. This study uses the meta-synthesis method by conducting a review of 31 previous studies listed in the research media. The results of the study found that government agencies in Indonesia had implemented mutation policies based on applicable regulations ranging from the law to local regulations on several factors, the value of improving performance and productivity, career development and promotion, to filling vacant positions. However, several studies have found that there is still corruption, collusion and nepotism, political affiliation, family connections, and close relations with superiors which causes a mismatch between the placement of employees and their competencies. Transfer of employees based on a merit system is indicated to improve performance including public services in providing information to create public sector accountability. Career development and promotion can also expand knowledge and experience to produce creative and innovative employees to support the achievement of organizational goals.
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Smith, Christopher James Wallace, James Sewell Cahill, and Altay Nuhoglu. "Macro to Nano: Scaling Effects of Bi2Te3 Thermoelectric Generators for Applications in Space." PAM Review Energy Science & Technology 3 (June 7, 2016): 86–99. http://dx.doi.org/10.5130/pamr.v3i0.1415.
Full textAbstract:
For decades research and development has been committed to improving the Figure of Merit (ZT) of Bismuth Telluride (Bi2Te3) Thermoelectric Generators (TEG) and has reached its limit at ≈1. This Meta-study aims to determine if further improvements can be made when the size of TEGs decrease. To quantify the change from macro to nano scale the change in ZT, thermal and electrical conductance, Seebeck coefficient and power factor as the size of the thermoelements decrease has been investigated as well as how Wiedemann-Franz (WF) law holds on the nanoscale. This meta-study was conducted by evaluating and comparing developments in TEGs for the past three decades. Based on theory it was expected that increases in ZT would occur as the thermoelement dimensions are reduced due to increased scattering of electrons and phonons as well as the increased density of electronic states. Increases to ZT due to these effects was not observed in experimental data due to difficulties in nanoscale production. This meta-study observed some indicators that the theory is correct in reduced thermal conduction from increased phonon and electron scattering and that phonon scattering was greater than electron scattering. Furthermore, a weak indication that WF law is not applicable on the nanoscale due to the scattering suggesting a decoupling of electrical and thermal conduction which is not achievable in macro scale TEGs
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de Margerie, Stanislas. "Pay-for-Delay Settlements: In Search of the Right Standard." World Competition 36, Issue 1 (March 1, 2013): 85–97. http://dx.doi.org/10.54648/woco2013005.
Full textAbstract:
In its 2009 pharmaceutical sector inquiry, the European Commission observed that patent settlements involving a value transfer from the originator to the generic manufacturer (reverse payment) could fall under the prohibition of anticompetitive agreements. In 2012, it issued its first two statements of objections in reverse payment cases. In the US, where competition authorities have dealt with this issue for more than a decade, courts remain split on the applicable competition standard. Condone reverse payments as long as the settlement does not exceed the potential exclusionary scope of the patent? Or, conversely, consider them as prima facie evidence of an agreement to keep generics off the market ('pay for delay')? One reason for this indecision is that many courts are reluctant to interfere with the complex dynamics of patent settlements: while reverse payments could be indicative of anticompetitive intent, they could also be seen as a necessary mechanism to help parties reach a settlement. Blindly condemning all reverse payments thus seems excessive, but determining which payments are legitimate and which are not poses serious difficulties. In light of these difficulties, the more lenient approach to reverse payments that is currently adopted by the majority of US courts at least has the merit of pragmatism.