Journal articles on the topic 'Substantive public law'
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1
Roberts, Melanie. "Public Law Representations and Substantive Legitimate Expectations." Modern Law Review 64, no. 1 (January 2001): 112–22. http://dx.doi.org/10.1111/1468-2230.00312.
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Jakimoski, Laze, and Pakiza Tufekci. "CHARACTERISTIC OF THE SUBSTANTIVE LAW." Knowledge International Journal 28, no. 6 (December 10, 2018): 1977–84. http://dx.doi.org/10.35120/kij28061977l.
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The division of material and procedural law has its deep traditions both in the law and in the legal science. Until recently in the continental legal system had primacy substantive law and the procedural law was perceived as something secondary, as a technology whose task is to serve the substantive law. However, in recent years, more and more widespread is the understanding that both substantive and procedural law are equally important. There is no basis for the material right to be considered as primary and priority, and the process as secondary and subordinate. Substantive law is inextricably linked with procedural law. They can be considered as two sides of the legal category - legal regulation and procedural means for administrative and judicial protection of subjective rights in regulated public relations. In the substantive law, the legal norm determines what the rights and obligations of the legal entity are. The process law determines how these rights and obligations will be realized, that is, the procedure.
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Tarlock, Dan. "Is a Substantive, Non-Positivist United States Environmental Law Possible?" Michigan Journal of Environmental & Administrative Law, no. 1.1 (2012): 159. http://dx.doi.org/10.36640/mjeal.1.1.substantive.
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U.S. environmental law is almost exclusively positive and procedural. The foundation is the pollution control and biodiversity conservation statutes enacted primarily between 1969–1980 and judicial decisions interpreting them. This law has created detailed processes for making decisions but has produced few substantive constraints on private and public decisions which impair the environment. Several substantive candidates have been proposed, such as the common law, a constitutional right to a healthy environment, the public trust, and the extension of rights to fauna and flora. However, these candidates have not produced the hoped for substantive law. Many argue that a substantive U.S. environmental law is not possible because the law can only serve to establish rational processes for resolving deep and bitter resource use conflicts. This Article argues that international environmental law can serve as a source of mixed procedural substantive principles because it has taken a much more holistic view of the environment, developed a set of overarching norms—soft as they are—that apply to almost all environmental problems, and has done a better job of linking procedure with substance in order to constrain decisions that adversely impact human and ecosystem “health.” The Article offers three proposed principles to strengthen the unfulfilled project of environmental protection. First, procedural duties must be linked to the implementation of substantive outcomes. Second, incomplete information must be a basis for regulatory actions, provided that a minimal scientific threshold of risk is established, processes are in place to acquire additional information, and the decision maker can adjust to changed circumstances. Third, decisions should exhibit planetary stewardship by applying the best available technology, utilizing the polluter pays principle, promoting an accepted standard of sustainable development, adopting the least intrusive resource use option with adaptive feedback, and restoring degraded ecosystems.
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Safonov, M. "THE PUBLIC COMPANIES LAW AND SUBSTANTIVE IMAGES OF PERSONS OF PUBLIC LAW IN MODERN RUSSIAN LEGISLATION." East European Scientific Journal 3, no. 11(75) (December 16, 2021): 42–49. http://dx.doi.org/10.31618/essa.2782-1994.2021.3.75.168.
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The article outlines the general problems arising in the system of the Russian legislation associated with the contradiction between the legal forms set forth in the Civil Code and the forms of legal entities that were actually formed in public law. As a specific example, it was impossible to inscribe those entities which had special legal status (Central Bank of the Russian Federation, the Pension Fund of Russia, Vnesheconombank of the USSR, Bank for Foreign Trade of the RSFSR) in the proposed by Civil Code classification. The emergence of the legal form of a public corporation is seen in the article as an attempt to remove the existing contradictions in legislation.
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Ambrus, Monika, Herman Kasper Gilissen, and Jasper J. H. Van Kempen. "Public Values in Water Law: A Case of Substantive Fragmentation?" Utrecht Law Review 10, no. 2 (May 8, 2014): 8. http://dx.doi.org/10.18352/ulr.266.
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Sule, Ibrahim. "Substantive Legitimate Expectations: The Journey So Far." European Journal of Law and Political Science 1, no. 5 (December 20, 2022): 57–63. http://dx.doi.org/10.24018/ejpolitics.2022.1.5.42.
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The doctrine of substantive legitimate expectation is rooted in administrative law. Initiated in United Kingdom, it is originally intended to provide relief for claimants who suffered public wrong, but who may not have any legal claim procedurally or substantively under the main administrative or public law principles. Basically, by the principles in promissory estoppel, a public authority will not be allowed by rescind its promise if a suspecting member of society relies on such a promise to alter his position. This paper analyses the genesis of legitimate expectation in its both substantive and procedural forms in view of a number of cases decided by English courts.
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Lilleholt, Kåre. "Remedies and Substantive Law European Dimensions of Economic and Private Law." European Business Law Review 23, Issue 6 (January 21, 2012): 861–912. http://dx.doi.org/10.54648/eulr2012037.
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The topic is the private law consequences of breaches of EU law as developed in legislation and case law, and the links with ongoing efforts to establish principles and model rules of European private law. The fields covered in the discussions included competition law, public procurement law, intellectual property law and rules on free movement, with remedies ranging from injunctions and termination of contract to damages and restitution. The papers confirm the underlying assumption that there is a need to develop general doctrines and principles of remedies in EU law and national law.
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Jankuv, Juraj. "Protection of Right to Environment in International Public Law." International and Comparative Law Review 19, no. 1 (June 1, 2019): 146–71. http://dx.doi.org/10.2478/iclr-2019-0005.
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Summary Substantive human right to environment represents a relatively new element in international human rights catalogues. This human right has gradually become established in international public law since the 1970s. This paper deals with the identification and analysis of the formal sources of two branches (or, according to some opinions, subbranches) of international public law – international environmental law and the international human rights law that enshrine substantive human right to environment as well as with the identification of the relevant international law mechanisms of direct and indirect protection of this right.
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Bila-Tiunova, L. R., and Ye I. Frolova. "SUBSTANTIVE CHARACTERISTICS OF THE FUNCTIONS OF LEGAL ENTITIES OF PUBLIC LAW." Juridical scientific and electronic journal, no. 4 (2022): 236–39. http://dx.doi.org/10.32782/2524-0374/2022-4/54.
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Klip, Andre. "Editorial: The Substantive Criminal Law Jurisdiction of the European Public Prosecutor’s Office." European Journal of Crime, Criminal Law and Criminal Justice 20, no. 4 (2012): 367–76. http://dx.doi.org/10.1163/157181712x667422.
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Kunev, Yuriy, and Oksana Myronets. "ADMINISTRATIVE LAW: MATERIAL, PROCESSUAL AND FORMAL COMPONENTS." Administrative law and process 32, no. 1 (2021): 15–27. http://dx.doi.org/10.17721/2227-796x.2021.1.02.
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The purpose of the paper is to analyze and disclose the issues of theoretical and practical plan that prevent the solution of administrative law legal applying issues, which contain or are connected with the definitions of “substantive and processual law” and “norms substantive and processual law” and the development of theoretical proposals needed to solve the problems of the practical plan. Research methods. The paper uses a comprehensive approach to creating a theoretical picture of the object and the application of the methodological scheme of “double knowledge” about the object as such and the knowledge that describes and depicts it; method of comparative legal and doctrinal knowledge of administrative legislation; method of generalization and modeling of new theoretical knowledge of administrative law. Results. Issues for the further development of theory and practice of administrative law are identified and a theoretical approach for their solution is suggested. It is established that the subject of administrative law requires modeling and legal regulation of an administrative activity according to the scheme of legal certainty by the norms of substantive and formal law. Substantive administrative law consists of rules that describe materialized objects, the title of which defines the basic institutions of administrative law. Formal administrative law consists of norms that determine the process of substantive law formalization according to the procedures of administrative activity, which consist of substantive and processual norms of formal law. The main substantive rules of formal law include public conditions and formalities, as legal means that determine the interaction of subjects in administrative activity and the delimitation of the spheres of norms effect for private and public law. Conclusions. It gives reasons for the position that the practical implementation of approaches based on the theoretical position of the division into substantive and formal administrative law, means the formation of an administrative procedure as a single standard for the whole administrative activity, including judicial.
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Sasson, Monique. "Public Policy in International Commercial Arbitration." Journal of International Arbitration 39, Issue 3 (June 1, 2022): 411–32. http://dx.doi.org/10.54648/joia2022019.
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This article analyses the decisions on public policy contained in the Kluwer Arbitration database. The database includes more than 1,000 cases. Objections based on public policy have been raised in 44% of recognition and enforcement proceedings and in 38% of setting aside proceedings. The success rate of these objections was low, 19% and 21%, respectively. This article discusses the decisions in which these objections were successful, distinguishing between the three International Law Association categories: (i)‘violation of fundamental principles, procedural public policy, or substantive public policy’; (ii) ‘loi de police’; and (iii) ‘violation of international obligations’ (though there were no successful objections in this category). The article concludes that the Kluwer Research confirms that public policy should only be applied in a limited set of circumstances, though it also features a few exceptions to the narrow construction of the concept of public policy. public policy, procedural public policy, substantive public policy, recognition and enforcement, vacatur, setting aside, violation international obligations, due process, loi de police
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Coutts, Stephen. "Supranational public wrongs: The limitations and possibilities of European criminal law and a European community." Common Market Law Review 54, Issue 3 (May 1, 2017): 771–803. http://dx.doi.org/10.54648/cola2017060.
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Criminal law has an inherent expressive and communitarian dimension, expressing the common values and norms of the political community. Drawing on the theory of Antony Duff, this article explores the extent to which the EU’s actions in the area of substantive criminal law can be said to express common European values by identifying actions deemed wrongful vis-à-vis the Union as a whole. The Union is limited in its capacity to express conceptions of wrong-doing through its substantive criminal law by the limited nature of its competences, its functional character and its multilevel structure. However, it does enjoy an expressive quality in two broad areas; first, the identification of European public goods, harm to which constitutes a wrong to the Union and second, common European public values. Also, substantive EU criminal law can support transnational criminal law processes, interacting with national criminal law and giving rise to the identification of certain shared wrongs amongst Member States. Thus, while certainly limited, EU criminal law does fulfil a role in the identification of wrongful behaviour and the expression of common values.
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Hodge, James G. "Reminiscences on Public Health Law and JLME." Journal of Law, Medicine & Ethics 50, no. 1 (2022): 190–94. http://dx.doi.org/10.1017/jme.2022.24.
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AbstractThis contribution marks a dual milestone at the intersection of public health law and JLME: my 50th publication of a substantive manuscript in the 50th anniversary of the Journal in 2022. In recognition of these coinciding landmarks, this installment of the Public Health Law column for JLME features observations and reflections of the field based largely on prior publications.
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Riekkinen, M. A. "The term «protest» in constitutional law: the meaning and contents." Russian Journal of Legal Studies 3, no. 1 (March 15, 2016): 163–69. http://dx.doi.org/10.17816/rjls18124.
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This article attempts to define the meaning and contents of the concept «protest» as it exists in constitutional law. The author abstains from acknowledging «the right to protest» in Russia’s constitutional law system. Instead it is studied how the opportunities to express the protest against decisions, actions (or lack thereof) by public authorities can be implemented as the modes of substantive public participation. The author considers the differences between formal and substantive public participation while emphasizing that the Constitution of the Russian Federation avoids direct usage of such terms as «protest», «criticism», or «objections» with respect to both types of such participation.
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Dąbrowska, Anna. "Influence of the Law of the Council of Europe on Substantive Administrative Law in Poland. Selected Issues." Studia Iuridica Lublinensia 29, no. 1 (March 29, 2020): 67. http://dx.doi.org/10.17951/sil.2020.29.1.67-83.
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<p>Legislative powers of the Council of Europe have a crucial impact on the domestic legal systems of the EU Member States including substantive administrative law, i.e. such an area of administrative law which defines rights and responsibilities of the public administration bodies and citizens. The legislation created by the Council of Europe’s bodies has a great impact on the areas of law which were earlier regarded as the exclusive responsibility of a given country. The Council of Europe has always been a major source of standard setting. This paper analyses selected areas of substantive administrative law taking into account hard law and soft law documents developed under the auspices of the Council of Europe.</p>
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Hoversten, Paul. "Punishment but Not a Penalty? Punitive Damages Are Impermissible Under Foreign Substantive Law." Michigan Law Review, no. 116.5 (2018): 759. http://dx.doi.org/10.36644/mlr.116.5.punishment.
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It is a well-established principle that no court applies the penal laws of another sovereign. But what exactly is a penal law? According to Judge Cardozo, a penal law effects “vindication of the public justice” rather than “reparation to one aggrieved.” Although courts have historically treated punitive damages as a purely civil remedy, that attitude has shifted over time. Modern American punitive damages serve not to compensate the plaintiff but to punish the defendant on behalf of the whole community. Therefore, when courts rely on foreign substantive law to impose punitive damages, they arguably violate the well-established principle that no court applies the penal laws of another sovereign. This Note argues that punitive damages are penal in the choice-of-law sense, and state courts violate the penal exception when they impose punitive damages under or alongside foreign substantive law. It proposes several possible means to resolve this dissonance and ultimately concludes that courts should altogether eliminate the prospect of punitive damages when they impose liability under foreign substantive law.
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Colombi Ciacchi, Aurelia. "Public Policy Exceptions in European Private Law: A New Research Project." European Review of Private Law 22, Issue 5 (October 1, 2014): 605–10. http://dx.doi.org/10.54648/erpl2014051.
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Abstract: Public policy exceptions arguably exist in all fields of private and commerciallaw, not only in private international law but also in substantive law. In substantive private law, the term 'public policy exception' could be used to indicate general illegality rules that make an act of private autonomy (a contract, a testament, etc.) invalid when it conflicts with public policy or good morals. In primary EU law, one may call 'public policy exceptions' the derogations from the four freedoms for reasons of public morality, public policy, public security, or public health. Like the ordre public exceptions in private international law, the public policy exceptions in substantive private and commercial laws can also be seen as conflict rules. In fact, the public policy exceptions in substantive private law address the conflict between state regulation and policy, on the one hand, and private (self-)regulation and policy, on the other hand. Moreover, the public policy derogations from the four freedoms regulate the conflict between EU and national law and policy. A long-term research project initiated in Groningen aims at a cross-cutting comparison of interpretations and applications of concepts that function as public policy exceptions in different branches of substantive, international, and EU private and commerciallaw. In particular, this project aims at discovering and comparing the governance aspects, the fundamental rights based aspects, and the social justice aspects of these interpretations and applications. Resumé: On trouve sans aucun doute des exceptions d'ordre public dans tous les domaines du droit privé et commercial, non seulement en droit international privé mais aussi en droit matériel. En droit privé matériel, le terme 'exception d'ordre public' pourrait être utilisé pour indiquer des règles générales d'illicéité invalidant un acte d'autonomie privée (un contrat, un testament etc.) lorsqu'il est contraire à l'ordre public ou aux bonnes mœurs. Dans le droit primaire de l'UE, on peut appeler 'les exceptions d'ordre public' les dérogations aux 'quatre libertés' pour des raisons de morale publique, d'ordre public, de sécurité publique ou de santé publique. Comme les exceptions d'ordre public en droit international privé, les exceptions d'ordre public en droit privé matériel et commercial peuvent aussi être considérées comme des règles de conflit. En fait, les exceptions d'ordre public en droit privé matériel traitent le conflit entre la réglementation et la politique publiques d'une part et l'(auto-)réglementation et la politique privées d'autre part. De plus, les derogations d'ordre public aux 'quatre libertés' règlementent le conflit entre le droit et la politique au niveau national et au niveau de l'UE. Un projet de recherche à long terme lancé à Groningen vise à établir une comparaison transversale d'interprétations et d'applications de concepts fonctionnant comme exceptions d'ordre public dans différentes branches de droit matériel, international et de droit commercial et privé de l'UE. Ce projet tente en particulier de découvrir et de comparer les aspects de gouvernance, les aspects basés sur les droits fondamentaux et les aspects de justice sociale de ces interprétations et applications.
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Koepp, Johannes, and Agnieszka Ason. "An Anti-Enforcement Bias? The Application of the Substantive Public Policy Exception in Polish Annulment Proceedings." Journal of International Arbitration 35, Issue 2 (April 1, 2018): 157–71. http://dx.doi.org/10.54648/joia2018009.
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This article examines how Polish courts have dealt with annulment applications based upon purported violations of substantive public policy and measures the Polish jurisprudence against the standards developed by the national courts in England, France, Switzerland and Germany. It identifies an anti-enforcement bias of the Polish courts which, in sharp contrast to their European counterparts, still favour an expansive interpretation of the public policy exception and have surprisingly little qualms in engaging in a thinly veiled merits review with unclear boundaries. The markedly interventionist approach of the Polish judiciary encourages annulment applications, which both ill-serves the arbitral process generally and undermines recent efforts to promote Poland as a desirable seat for international arbitration specifically. A solution to these ills can only be found in a narrower interpretation of the substantive public policy exception, in harmony with the standards developed by the national courts in the major European arbitration centres.
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Bamforth, Nicholas. "Interim relief in the public law context." Cambridge Law Journal 58, no. 1 (March 1999): 1–48. http://dx.doi.org/10.1017/s0008197399211014.
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THE remedial aspects of judicial review illustrate in particularly vivid form the divergent nature of public and private law proceedings. The prerogative orders–mandamus, certiorari and prohibition–are available only via judicial review. Leave is required for judicial review but not for private law actions. By contrast with the private law writ procedure, judicial review must be brought promptly and within three months. In judicial review, a remedy can still be denied to the applicant who establishes a substantive case. As the Law Commission made clear in its Report Administrative Law: Judicial Review and Statutory Appeals, “[j]udicial review often involves values and policy interests, which must be balanced against and may transcend the individual interests, which are normally the subject of litigation between private citizens” (Law Com. No. 226, para. 2.1).
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Lewandowski, A. "PUBLIC LAW CONTRACT IN GERMAN ADMINISTRATIVE LAW." Constitutional State, no. 47 (October 18, 2022): 29–39. http://dx.doi.org/10.18524/2411-2054.2022.47.265281.
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The article focuses on the public-law contract in German law. It considers the relationship between the public-law contract and the administrative act in the context of the principle of freedom of choice of form of action of the administrative authorities. It analyses the legal basis of the public law contract. First of all, these covers § 54 of the Administrative Procedure Act as the central norm of the public law contract. Issues relating to the limitations in the enforcement of § 54 are also outlined. In addition, the constitutional background of the public contract is discussed. Particular attention is paid to the principle of lawfulness of government action and its two main components: the rule of law and the principle of compliance with the law, which have a varying impact on the public-law contract. The article also considers the dual nature of public-law contracts, which is primarily due to the fact that the public-law contract itself is directly a figure of both procedural and substantive law. Distinctive features of a public-law contract in the context of its differentiation from the other forms of implementation by administrative authorities of their powers are analyzed. First of all, it affects the administrative act on demand as the closest to the public-law contract type of its external manifestations. The same applies to an administrative act with additional conditions, since it has misleading characteristics similar to a contractual relationship. The subject matter of the contract itself was analyzed as a decisive factor enabling it to be classed as a contract entered into in the field of public administrative law. The role of the theory of special law and its impact on the process of identifying the public law contract was examined. In this regard, the limping mutual contract as a special form of a public-law contract has been defused. A special place in the article is given to the issues of terminology. It is concluded that Ukrainian administrative law has no analogues and similar approach not only to the question of classification but also to the correlation of the considered notions developed by German administrative law.
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Elliott, Mark. "LEGITIMATE EXPECTATION: THE SUBSTANTIVE DIMENSION." Cambridge Law Journal 59, no. 3 (November 16, 2000): 421–71. http://dx.doi.org/10.1017/s0008197300210209.
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THE need to redress the inequality of power between the citizen and the State, which lies at the heart of public law, is illustrated nowhere more clearly than in the facts of R. v. North and East Devon Health Authority, ex p. Coughlan [2000] 2 W.L.R. 622. As a result of her severe disability Pamela Coughlan was, for many years, looked after as a hospital in-patient. In 1993, however, she agreed to move to a purpose-built care facility on the strength of the respondent’s promise that it would be her “home for life”; yet, only five years later, the health authority decided to close the new home, citing financial reasons. That the applicant possessed a legitimate expectation which would be breached by closure of the home was not in doubt. The difficult question was how the expectation could be protected. Courts have long been willing to enforce procedural promises and to safeguard expectations of substantive benefits by requiring the adoption of a fair procedure (typically consultation) before the benefit is denied. Coughlan, however, makes it clear that courts may go further than this by substantively protecting substantive expectations.
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Brakoniecki, Dariusz. "Security and Public Order in Polish Public Law." Internal Security 9, no. 1 (December 29, 2017): 109–22. http://dx.doi.org/10.5604/01.3001.0010.7439.
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In this paper the author discusses the position and role of security and public order in the Polish public law system. The division into public law and private law included is not the first. It is derived from the work of Ulpian, and was later included in the Digest of Justinian. Its further development, depending on the region, accepted political ideology and the philosophy of law, took on a different shape, determining the way of perceiving the law. It should be assumed that the concept of separation between public law and private law is the domain of substantive law, and its application is primarily found in scientific digressions. The considerations are of theoretical nature, pointing to the scope of application of the concept of security, which is wrongly equated with the concept of public order, in various legal acts ranging from acts in law and international law, through executive acts, to local law and internal ordinance regulations. These have recently shown a dramatic increase in the role of security and public order in the decision-makers and legislators conceptions. Despite the importance and demand for the good of public security and public order, which is at the same time one of the basic functions of public administration, the legislator has only presented this issue in a fragmented way, referring only to particular areas of law which, despite use by numerous judicators, still raise some doubts in respect of interpretation. In the area of the issue discussed, the author also points to the tendency of blurring the boundary between the sphere of public law and the sphere of private law, in particular by dislocating public service provision in the field of public security and order, to paid for services provided by private parties in this area. The result of this synthesis is a partial indication of the dangers resulting from differences in the constitutional guarantees of private and public law.
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Doiar, Ye. "Norms of administrative procedural law: the concept and some aspects of the relationship with the rules of substantive administrative law." Uzhhorod National University Herald. Series: Law, no. 69 (April 15, 2022): 272–80. http://dx.doi.org/10.24144/2307-3322.2021.69.46.
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An attempt is made to analyze the features and essence of the rules of administrative procedure, as well as some aspects of their relationship with the substantive rules of administrative law. In particular, it is noted that the rules of administrative procedural law: are the primary elements of the system of administrative procedural law; are derived from the rules of administrative law, as they provide sufficient procedural conditions for the implementation of its regulatory, protective and procedural rules; have a specific structure due to the sphere of objectification; enshrined in the Code of Administrative Procedure of Ukraine and other acts of administrative procedure legislation; aimed at the legal regulation of public relations arising in the field of administrative proceedings; have the purpose - fair, impartial and timely resolution by the court of disputes in the field of public relations in order to effectively protect the rights, freedoms and interests of individuals, rights and interests of legal entities from violations by the subjects of power; implementation is ensured through a system of certain means (state-coercive, stimulating, etc.).
It is summarized that the norms of administrative procedural law are a primary element of the system of administrative procedural law derived from substantive legal norms, which has a specific structure due to the sphere of objectification, aimed at legal regulation of public relations arising in administrative proceedings for effective protection. rights, freedoms and interests of individuals, rights and interests of legal entities from violations by the subjects of power.
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Ikhwan, M., and Anton Jamal. "Diskursus Hukum Islam dalam Konteks Keindonesiaan: Memahami Kembali Nilai-Nilai Substantif Agama." Al-Manahij: Jurnal Kajian Hukum Islam 15, no. 1 (June 11, 2021): 173–86. http://dx.doi.org/10.24090/mnh.v15i1.4689.
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This paper explain the discourse of Islamic law in the Indonesian context in order to understand the substantive values of religion in national life. The development of the times raises the complexity of problems in life, including the presence of Islamic law in the nation-state, this of course requires a comprehensive discourse in order to answer each of these problems. This paper uses a qualitative research method with a narrative approach by referring to secondary sources so that it can be concluded. First, the formulation of Islamic law in Indonesia needs to be considered in terms of prioritizing the application of the noble values of religion itself (substantive). Second, the role of religion is very large in public life, hence the exclusion of religion from the private sphere or vice versa (placing religious law into the public sphere) needs to be viewed from various aspects. Third, the formalization of Islamic law in several perspectives of the Indonesian legal system is relatively difficult to materialize because of historical, ideological, sociological, political, juridical, religious and cultural considerations, both at the national and international levels.
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Kusiak-Winter, Renata. "Otoczenie polityczno-prawne administracji publicznej." Przegląd Prawa i Administracji 111 (February 28, 2018): 103–18. http://dx.doi.org/10.19195/0137-1134.111.7.
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LEGAL AND POLITICAL ENVIRONMENT OF PUBLIC ADMINISTRATIONThe analysis of the political and legal environment of the public administration has been presented from the point of view of arational lawmaker who aims the legal framework enabling influence of politics on the administration. This is reflected in the general administrative law, the administrative law of organizational structures, the substantive administrative law and the procedural administrative law.
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Goodman, Richard A., Zita Lazzarini, Anthony D. Moulton, Scott Burris, Nanette R. Elster, Paul A. Locke, and Lawrence O. Gostin. "Other Branches of Science are Necessary to Form a Lawyer: Teaching Public Health Law in Law School." Journal of Law, Medicine & Ethics 30, no. 2 (2002): 298–301. http://dx.doi.org/10.1111/j.1748-720x.2002.tb00396.x.
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Over two hundred years ago, Thomas Jefferson suggested the need for a broader legal curriculum. As the twenty-first century begins, the practice of law will increasingly demand interdisciplinary knowledge and collaboration — between those trained in law and a broad range of scientific and technical fields, including engineering, biology, genetics, ethics, and the social sciences. The practice of public health law provides a model for both the substantive integration of law with science, and for the way its practitioners work. In addition, public health law also provides a model for interdisciphuy and integrative teaching.
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Giakouminaki, Olga. "The EU Legality Principle in Public Procurement Contracts." Nordic Journal of European Law 3, no. 1 (July 12, 2020): 35–59. http://dx.doi.org/10.36969/njel.v3i1.21992.
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The early interest that EU law has demonstrated for public procurement contracts has gradually been molded into a sector-specific paradigm of European administrative law. Despite the constant movement of the sector counting already four generations of substantive and two generations of procedural EU law, its qualification as administrative law provides some pillars of stability; as an expression of a sui generis principle of legality, the award of public contracts is organized via formalistic, yet sometimes rigid and time-consuming procedures, due process emerging as a common principle among national and supranational administrative systems. Even though due process constitutes the gateway to accountability, the aim of the paper is limited to underlining the indicators of administrative procedure in the award of public contracts.
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Kusiak-Winter, Renata. "Wielopostaciowość administracji w prawie administracyjnym." Opolskie Studia Administracyjno-Prawne 16, no. 1 (3) (September 13, 2019): 71–81. http://dx.doi.org/10.25167/osap.1145.
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The phenomenon of multiform nature of public administration has been presented from the point of view of a rational lawmaker who perceives the need for a proper legal framework to design the versatility of public administration. This is especially reflected in the administrative law of organizational structures and in the substantive administrative law, while the main purpose of the general administrative law is to guarantee normative unity in the multifaceted character of public administration.
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Vitanski, Dejan. "LEGISLATION AS A SUBSTANTIVE PRINCIPLE OF ADMINISTRATION." Knowledge International Journal 26, no. 6 (March 18, 2019): 1763–69. http://dx.doi.org/10.35120/kij26061763v.
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One of the essential principles, which represents a pivot in the physiognomy of the legal order, is the principle of legality. His imperative is manifested through the obligation of the administrative organs and officials, the actions they take and the acts they make, to base exclusively on the laws, as well as the rules based on the law. Legality is a fundamental principle that all employees, from the top to the bottom of the administrative pyramid, should uphold. As a substantive element, it constitutes the essence of the service-based and functionally potent administrative systems of European countries and is established as a normative framework, directive, guide, roadmap and postulate for the operation of their officers. Because of its primordial and strategic significance, in states with atrophied and insufficient institutional structures, which still pass through the labyrinth of the obscure transition tunnel, this principle should be implanted as the basic substrate in the mental matrix and in the professional habitat of the administrators. In accordance with the principle of legality, the authorities of the public and state administration, in the immediate application of the laws and other regulations, have a duty to provide the rights of the clients, ie they impose obligations that arise only from the laws. In this way, the principle of equality is revived, and arbitrariness, voluntarism and arbitrariness in the resolution of the rights and obligations of citizens and other legal entities are prevented. By practicing the principle of legality, in fact, the stability of the legal as well as the social system as a whole is ensured and the fundamental, constitutional and law-enforced rights of citizens are guaranteed. The administrative authorities are obliged to apply the principle of legality and in cases when they are authorized to decide on a free (discretionary) assessment. It is a guarantee mechanism for reducing and preventing arbitrariness and arbitrariness in decision-making. The antidote to legality is illegality. In the narrow sense, the notion of illegitimacy refers to abuse of power (ultra vires), or rather incompetence, a direct violation of legal rules and errors in the establishment and the legal qualification of the facts. This meaning of the term in "narrower sense" refers, in particular, to cases where the administration procedure is regulated by a law that is very precise and in cases where the competence of the administrative authority is determined and imposed in accordance with the law, but it can also apply of cases where the administration has some kind of discretion. In a broader sense, however, illegality involves the pursuit of improper purposes and consideration of inadequate considerations and irrelevant factors.
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Tvedt, Morten Walløe. "How Will a Substantive Patent Law Treaty Affect the Public Domain for Genetic Resources and Biological Material?" Journal of World Intellectual Property 8, no. 3 (November 1, 2005): 311–44. http://dx.doi.org/10.1111/j.1747-1796.2005.tb00252.x.
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Mulyono, Andreas Tedy, and Rudy Pramono. "The Regulatory Status Analysis for Updating the Public Legal Awareness on Human Rights in Indonesia." Jurnal HAM 13, no. 3 (December 22, 2022): 459. http://dx.doi.org/10.30641/ham.2022.13.459-478.
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In this study, it is argued that quantitative empirical legal research can support understanding public legal awareness of the implementation of human rights protection in Indonesia. The public legal awareness is analyzed using the Partial Least Square-Structural Equation Modelling to provide flexibility for exploring the link of the ideals of human rights law with elements of the legal system as research variables. This research is a literature study on the importance and use of empirical quantitative research methods through the establishment of a path model called Regulatory Status Analysis. The model positions legal ideals (justice, certainty, and expediency) as an independent variable; while the two elements of the legal system: substantive law and legal structure, are mediating variables. Based on the trial run, the path model can picture the relationship between ideal law and legal culture as the dependent variable in the form of public awareness to comply with legal norms that protect human rights. Substantive law also has a positive influence on awareness to obey the law. However, the legal structure has no influence, either directly or indirectly. It might be because respondents consider law enforcement against human rights violations less than optimal. The test result determines what kind of human rights legal system should be developed for national and global legal scholarship.
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Eversley, Calvin. "Legitimate Expectation and the Creation of Procedural and Substantive Legal Rights in Commonwealth Caribbean Public Law." Common Law World Review 33, no. 4 (November 2004): 332–51. http://dx.doi.org/10.1350/clwr.33.4.332.55935.
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Vasiljević, Mirko. "Commercial companies and commercial courts." Pravo i privreda 58, no. 3 (2020): 7–54. http://dx.doi.org/10.5937/pip2003007v.
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The company law rules governing commercial companies, being a special sphere of substantive law, are not and cannot by themselves constitute a closed regulatory system. Practical legal life of numerous substantive institutes of company law is possible only within the complete legal surrounding and in delicate cooperation between substantive and procedural regulation. At this moment, the Serbian legal scene is characterized by an evident gap between legislative aspiration which covers the sphere of substantive provisions governing commercial companies (Law on commercial companies) aimed at following the trends of the company law regulation in the leading European countries and harmonised regulation within this sphere on the level of EU and regulation which covers the procedure of enforcement of those institutes in practice, both contentious and extra contentious, both judicial and arbitration. Of course, this does not mean that regulation of substantive law institutes, especially the institutes which have their procedural side, is always fully acceptable and exemplary in all their aspects. In this article the author critically discusses, before all, shortcomings of Serbian companies' regulation which governs substantive law institutes having corresponding procedural aspects: arbitrability of internal company disputes (companies' members - members, members - board of directors, companies' members - company) and special companies' actions that are recognized and regulated by law (arbitrability of derivative action, arbitrability of individual action, arbitrability of class action); shortcomings of existing substantive legal regime of derivative action, which are the main reason of the scarce presence of this type of action in judicial practice; shortcomings of existing legal regime of individual action (especially on the level of covering the zone of reflective losses), as well as the shortcomings of legal regime of the class action as a kind of collective action (especially of its legal effect on non-participants in the procedure before courts or arbitration) and, finally, representative actions. The author draws the conclusion that it is necessary to review the substantive regulation in order to remove any possible ground for interpretation that internal companies' disputes are not arbitrable (capable of being resolved by arbitration under the arbitration agreement). In the same vein, the author submits that it is necessary to thoroughly modify the existing procedural regulation, in order to make procedural aspects of company lawsuits more straightforward and indisputable (litispendancy objection and res iudicata objection - the need to establish only the objective identity of the subject-matter of the disputes, procedural costs related to derivative actions, legal effect of class action on non-participants in litigation or arbitration procedure, practical aspects of representative legal actions and so on). Finally, the author proposes the introduction of the possibility for alternative competence of public notaries for numerous extra-contentious procedures which can now be brought only before commercial courts. As an argument in favour of this proposal, the author puts forward that, at present, public notaries are competent to perform various non-contentions procedures (this could partly compensate for their almost complete non-justifiable exclusion from the sphere of company law, which is the current approach taken by the Serbian public notary law).
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Kolarov, Todor. "Historic analogs of civil confiscation of unexplained wealth – the case of Bulgaria." Journal of Financial Crime 27, no. 2 (January 10, 2020): 561–71. http://dx.doi.org/10.1108/jfc-08-2019-0108.
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Purpose Using Bulgarian legislation on civil confiscation and analysing the nature of the substantive authority to confiscate unexplained wealth, as well as evaluating research in common and continental law, this paper aims to seek historic parallels for non-punitive civil confiscation of unexplained wealth. Design/methodology/approach The design of this paper is centred on determining whether the substantive authority of the state to confiscate unexplained wealth has a Roman law equivalent. Conducting a review of key elements of the substantive authority for the action in Bulgaria, the research examines the validity of the hypothesis that the right to confiscate has a Roman law equivalent. Findings The research supports the position that the substantive authority to seek civil confiscation relief in Bulgaria has its origin in the overarching principle of unjustified enrichment in Roman law. Considering needed adjustments related to the developed demarcation between public and private law in contemporary law, the action to confiscate unexplained wealth in civil proceedings in the case study jurisdiction has its equivalent in the Roman condictio furtiva. Originality/value This paper sheds light on the theoretical basis for civil asset confiscation of unexplained wealth in one continental law jurisdiction, thus contributing to the on-going debate on the compatibility of civil confiscation of unexplained wealth with the continental law tradition.
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de Kok, Jochem. "Investment Screening in the Netherlands." Legal Issues of Economic Integration 48, Issue 1 (April 1, 2021): 43–66. http://dx.doi.org/10.54648/leie2021004.
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Despite imperfections, the Dutch framework for investment screening could function as a model for more proportionate and clearer investment screening rules. From a procedural perspective, the Dutch framework illustrates that it is possible to establish objective thresholds in order to more specifically target certain companies or categories of companies. Substantively, the Dutch framework shows that the general test of ‘security’ can be narrowed down to more specific substantive criteria. Providing clearer procedural thresholds and substantive tests under investment screening regulations, both in the Netherlands and elsewhere, will help ensure that investments are only restricted or prohibited where genuinely necessary and proportionate in order to safeguard national security interests. The Commission and national authorities throughout the Union should therefore endeavour to establish clearer procedural thresholds and frameworks of assessment to ensure that only transactions that can reasonably pose a threat to security or public order are made subject to filing obligations and are assessed on the basis of more clearly defined substantive criteria. investment screening, FDI screening, security screening, investment law, national security, proportionality, Chinese investments, Regulation 2019/452, investeringstoets, veiligheidstoets, ongewenste zeggenschap
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Betlem, Gerrit. "Cross-border water pollution: two paradigmatic Dutch cases." European Review of Private Law 4, Issue 2 (June 1, 1996): 159–78. http://dx.doi.org/10.54648/135254.
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Trans-boundary water pollution disputes before civil courts raise complex questions of substantive tort law, of standing for public interest groups and of private international law. As for the international jurisdiction of Dutch courts with respect to most European-based defendants, the EC 1968 Brussels Convention applies. This instrument provides for competence of the Dutch courts at the place(s) where the harmful event has occurred (the forum delicti). To date, the European Court of Justice has not yet decided whether the forum delicti also applies in situations of threatened wrong. Regarding Dutch substantive tort law, the applicable law in the two dispute this article focuses on, Dutch-based environmental protection groups have successfully sued foreign defendants on the basis of breach of statutory duty, whereas they are facing judicial reluctance when suing on the basis of breach of unwritten law.
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Kryvoi, Yarik. "Private or public adjudication? Procedure, substance and legitimacy." Leiden Journal of International Law 34, no. 3 (June 4, 2021): 681–703. http://dx.doi.org/10.1017/s0922156521000224.
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AbstractThis article identifies the essential differences between public and private adjudication and their implications for the legitimacy and efficiency of dispute resolution institutions, as well as the rule of law. Public adjudication comes at a significant cost for the taxpayers but helps secure a consistent body of case law, promotes public policy goals, and allows third parties to know the rules of conduct in advance to prevent undesirable activities. This article shows that procedural rules of these institutions (regardless of whether the procedure is called adjudication or arbitration) differ when it comes to the appointment of adjudicators, their professional background, and how long they serve. Public and private institutions consistently follow different approaches to transparency and confidentiality of proceedings, the application of primarily substantive rules or principles to resolve disagreements, and the extent to which decisions can be reviewed internally or externally. By examining the procedural rules and practices of selected institutions, the article asserts three main claims. First, the choice of public or private adjudication is likely to lead to different procedural outcomes, including the cost of the process and the duration. Second, the legitimacy of any dispute resolution system must rest on both procedural and substantive aspects, while in reality these two are often viewed in isolation. Finally, the article shows how institutions could learn from each other to become more efficient and strengthen their legitimacy.
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Benson, Peter. "The Arguments in Justice in Transactions: A Reply to Commentators." European Review of Contract Law 17, no. 2 (June 1, 2021): 256–83. http://dx.doi.org/10.1515/ercl-2021-2013.
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Abstract This reply addresses some of the basic questions and criticisms raised by commentators in their interesting pieces on Justice in Transactions. My aim in that book is to work out a public basis of justification for the common law of contract. Given the limits of space, the discussion here is unavoidably selective and incomplete. Within these parameters, however, the article presents, and hopefully clarifies, some of the book’s main arguments that are relevant to the comments, using the footnotes for more detailed responses to the particular points made. These points encompass both methodological and substantive issues. The former center around the nature of public justification and whether the proposed theory of contract law meets its requirements. The substantive issues addressed include the role of promises in contract law, the compatibility between contractual fairness and contractual freedom, and the relation between contract and distributive justice.
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Jagielski, Jacek, and Piotr Gołaszewski. "Stan specjalny w materialnym prawie administracyjnym (zarys problematyki)." Zeszyty Naukowe Uniwersytetu Rzeszowskiego. Seria Prawnicza. Prawo 30 (2020): 123–39. http://dx.doi.org/10.15584/znurprawo.2020.30.7.
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In the article entitled “Special state in substantive administrative law (concept outline)” the authors undertake considerations aimed at preliminary and general outlining of the concept of the special state as a (new) institution of substantive administrative law and its relation to constitutional states of emergency. The conducted analysis, taking into account examples of specific statutory solutions, made it possible to define the special state as an institution regulated in terms of content and form in the generally applicable substantive administrative law, which, as part of ordinary constitutional legal and administrative measures, initiated collectively through the legal form of administrative actions, restricts the freedoms and rights or creates obligations of a generally specified group of entities – distinguished due to the objective criterion relating to a specific situation – in order to counteract the related to this situation, expected or existing threat to safety, order or public health.
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Akpoghome, Theresa U., and Godwin U. Akpoghome. "Prevention of trans-boundary environmental impact: legal framework and challenges of implementation." KAS African Law Study Library - Librairie Africaine d’Etudes Juridiques 8, no. 3 (2021): 321–55. http://dx.doi.org/10.5771/2363-6262-2021-3-321.
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Trans-boundary environmental impact occurs where development projects in one country or state have extra-territorial effect on neighbouring state and this aspect of environmental law falls squarely within the purview of international environmental law. This paper examines the prevention of trans-boundary environmental impact, legal framework and challenges of implementation in Nigeria and generally. The paper adopts a doctrinal approach. The paper discusses trans-boundary environmental impact and its origin in Nigeria. The paper notes that the first trans-boundary environmental impact in Nigeria happened in 1988 and prior to that there was no substantive environmental legislation in place. The paper evaluates the existing domestic and international legal frameworks and discovers that the substantive domestic law in Nigeria, lacks the necessary impetus to address environmental impact of a trans-boundary nature. The paper further finds that the international framework are not complemented by strong, substantive international law. Some of these treaties are married by vague language and weak enforcement mechanisms. The paper notes that there are several challenges preventing implementation of trans-boundary EIA and includes cost of trans-boundary EIA, limited access to document in the affected areas and unwillingness of the public to participate with an activity in another state. The paper recommends that the existing legal frameworks both at the national and international fora should be supported by strong substantive laws to enable implementation and concludes that the challenges can be overcome by specifying the parameters for determining the significance of effects, encourage public participation and dispute resolution mechanisms. Key Words: Environment, Assessment, Impact, Prevention, Challenges, Implementation
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Park, Nancy. "Officials and Chinese Justice: Public and Private Wrongdoing in Qing Law." T’oung Pao 106, no. 5-6 (December 31, 2020): 661–713. http://dx.doi.org/10.1163/15685322-10656p05.
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Abstract This article examines the law of officials during the Qing dynasty (1644-1912), focusing on the body of statutes, substatutes, and regulations pertaining to the organization and operations of the imperial Chinese bureaucracy. The general objective of the article is to draw attention to the law of officials and its significance within the Qing legal system. A more specific goal is to examine how official wrongdoing was defined, differentiated, and dealt with in Qing law, highlighting the crucial distinction between the two main categories of official wrongdoing: “public wrongdoing” (gongzui 公罪) and “private wrongdoing” (sizui 私罪). Part I analyzes the legal distinction between public and private wrongdoing; Part II examines the historical antecedents of the public-private distinction, as expressed in the philosophical writings and the codified law of earlier dynasties; and Part III analyzes the substantive and procedural consequences of the public-private distinction on Qing officials.
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van Rooij, Benjamin, and Annemieke van den Dool. "Lawmaking in China: Understanding Substantive and Procedural Changes." China Law and Society Review 1, no. 1-2 (May 16, 2016): 5–60. http://dx.doi.org/10.1163/25427466-00101002.
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This paper provides a sociolegal overview of law and lawmaking in China. It combines existing studies with original data published by the National People’s Congress as well as new case studies of recent lawmaking processes. The paper focuses its analysis on the development of regulatory laws that seek to prevent and control risk, including environmental, food safety, land, labor, and occupational health laws. The paper finds large changes in the substance of legislation over the past two decades. Amid generally massive growth in lawmaking at all levels, national legislation has become more ambitious, with a greater regulatory burden. It has become more specific, allowing for less discretion. And it has grown stronger teeth, with greater sanctions against violations. These regulatory laws allow for more public participation, albeit within a tightly confined authoritarian space. Such substantive changes come as the process of lawmaking has evolved. While central leadership retains strong control over lawmaking, the process has become more transparent, allowing more actors to exert influence. Successful legislative entrepreneurs are able to shape lawmaking by timing their advocacy at the right stage of the legislative process and, if possible, linking it to ongoing crises.
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Hilyuta, V. V. "Economic Crime or Offence: Search for Criteria of Distinction." Russian Journal of Legal Studies 5, no. 3 (September 15, 2018): 120–29. http://dx.doi.org/10.17816/rjls18390.
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Research objective is search of effective criteria of differentiation of crimes and offenses. In article features of maintenance of essential elements of offense and offense are revealed. Special attention is paid to a concept public danger and to its substantial signs. Features of manifestation of public danger in subject to encroachment, a way of commission of crime (offense), the caused damage, fault and the sanction of precept of law are considered.By the author it is noted that the public danger can’t be effective and reliable criterion of differentiation of administrative offense and crime. On the example of the bans which are contained in the Criminal code of Russia ( further - СС) and the Code about administrative offenses of Russia ( further the Administrative Code) has shown efficiency of degree and the nature of public danger of the acts made in the sphere of economic activity. It is noted that now the side between economic crimes and offenses is almost not audible. The author makes a hypothesis that neither substantial characteristics of public danger, nor character and degree of public danger are able to predetermine qualitative characteristics of the made act and on this basis to carry out clear split of crimes and offenses (administrative offenses). Search of criterion of differentiation of crime and offense doesn’t come down only to material structure - public danger. Doctrinal approach to permission of the real problem indicates that facet distinctions are not in the field of substantive law, and beyond his limits and can be explained with the only contents of the legal policy pursued in the state. Scope: law, law-enforcement practice, law-making, lawmaking.
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Lin Tan, Yock. "Global PPPs and the Choice of Law Challenge." Chinese Journal of Comparative Law 8, no. 1 (May 21, 2020): 79–115. http://dx.doi.org/10.1093/cjcl/cxaa011.
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Abstract Positing the public-private partnership as an important optional legal structure in the delivery of infrastructural services in the Belt and Road Initiative (BRI), this exploratory article discusses the crucial, but formidable, problems of risks in management or governance. It considers whether traditional common law conflict of laws as applied in Singapore courts can contribute principles that recognize shared expectations and commitment or foster solidarity, mutuality, and trust—values regarded as essential to their effective resolution. Arguing that traditional conflicts distinctions between State and non-State law as well as between public and private law are unhelpful in this respect, it concludes that modern critical developments contain promising prospects for developing such principles. These principles will predicate a role for foreign State substantive public policies and, if there is relevant ‘relational distance’, implement them in BRI choice-of-law disputes, thereby reconciling private efficiency and public accountability beyond borders.
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Shulakov, A. A. "RUSSIAN FEDERATION PUBLIC POLICY INTERESTS AND INTERNATIONAL ADOPTION." Lex Russica, no. 11 (November 22, 2019): 56–69. http://dx.doi.org/10.17803/1729-5920.2019.156.11.056-069.
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The article is devoted to the protection of the Russian Federation public policy interests in the field of intercountry adoption. It is established that strengthening of such protection entails changes in the legislation. Such changes are connected either with the super-mandatory character of already existing statutory mandatory substantive rules or with the emergence of new super-mandatory rules. In the field of intercountry adoption in Russia, this process is particularly striking. The study highlights that the general equation contained in Art. 1192 “Rules of direct application” of the Civil Code of the Russian Federation establishes two ways that allow by analogy to determine the super-mandatory nature of certain mandatory substantive rules stated in the Family Code of the Russian Federation: “by reference in the mandatory rules themselves” (the over-mandatory character of the rule is expressly determined by the legislator) or “because of their particular importance also for the protection of rights and legally protected interests” (the over-mandatory character of the rule is determined by the executor of law). It is concluded that the emergence of constitutionally significant values/public interests in the content of the mandatory substantive rule (“protection of morals, health, rights and legitimate interests of other family members and other citizens”, etc.) forms a criterion that allows the executor of the law to determine such rules as rules of over-mandatory character. Based on the analysis of international treaties of the Russian Federation on interstate cooperation in the field of adoption of children, the article defines the fundamental principles that make up the structure of intercountry adoption in the Russian Federation. It is established that the additional conditions and requirements of the state of child’s origin are included in the regulation of intercountry adoption (provisions of articles 165, 124-133 of the Family Code of the Russian Federation; provisions of bilateral treaties between Russia and European countries where more than 85% of Russian children are adopted (France, Italy, Spain)) to protect the interests of the RF public policy.
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Rosen-Zvi, Issi, and Israel Rosenberg. "The Politics of Civil Procedure: The Curious Story of the Process for the Eviction of Tenants." Law & Ethics of Human Rights 15, no. 1 (May 1, 2021): 153–86. http://dx.doi.org/10.1515/lehr-2021-2021.
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Abstract This article examines the process for the eviction of tenants (PET), which offers landlords a swift path for obtaining an eviction order against their tenants, as a case study exposing the politics of procedure. It shows that the PET is but one stage in a longstanding battle waged between two interest groups—landlords and tenants—involving both substantive law and procedural law. But while the story of their conflict over substantive law, fought in the parliament through the regular legislative process, is well-known, the story of the procedural amendments, despite their immense impact, remains shrouded in mystery and is told here for the first time. The reason for that, we argue, is that despite the vast impact of procedure on substantive right, many in the Israeli legal system mistakenly view civil procedure rules as highly technical and neutral directives for the day-to-day operation of the litigation process. The conclusion from such a view is that rulemaking should be left to expert legal technicians and court administrators and that transparency mechanisms or public participation are to be avoided as unnecessary due to the costs and burdens they impose on the rulemaking process. The article concludes with a call for overhauling the rulemaking process in Israel. We argue that the secretive and opaque process is anathema to democracy. Bearing in mind that procedural rules are inevitably imbued with substantive values and have an enormous effect on the substantive rights of the citizenry, the rulemaking process should be radically altered to enable all interested parties to take part in the process, making it far more transparent and subject to public scrutiny in all its stages.
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Petsche, Markus. "Punitive Damages in International Commercial Arbitration: A Conflict of Laws Lesson." Journal of International Arbitration 30, Issue 1 (February 1, 2013): 31–47. http://dx.doi.org/10.54648/joia2013003.
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This article examines the conflict of laws issues (with an emphasis on choice of law) arising in the context of punitive damages claims in international commercial arbitration. It explains that the appropriate choice of law methodology is based on a distinction between the 'power' of arbitrators to grant punitive relief (governed by the applicable arbitration law) and the 'availability' of punitive damages stricto sensu (governed by the applicable substantive law). It shows that this approach is confirmed by most available arbitral awards and court decisions. In this respect, it highlights that the US Supreme Court's decision in Mastrobuono v. Shearson Lehman Hutton, Inc. is frequently misinterpreted as implying that arbitral tribunals sitting in the United States (and thus subject to US arbitration law) may award exemplary damages despite those damages being unavailable under the applicable substantive law. This article also explores the impact of the incompatibility of punitive damages with the public policy of the arbitral seat and other relevant jurisdictions.
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Tóth, Tihamér. "The Interaction of Public and Private Enforcement of Competition Law Before and After the EU Directive – a Hungarian Perspective." Yearbook of Antitrust and Regulatory Studies 9, no. 14 (2016): 43–67. http://dx.doi.org/10.7172/1689-9024.yars.2016.9.14.2.
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The paper explores the changes the EU Directive on harmonizing certain rules governing actions for damages under national law for infringements of the competition law provisions will bring about in Hungary, with a special focus placed on damages liability rules, the interaction of public and private enforcement of these rules, and the importance of class actions. Amendments of the Competition Act introduced in 2005 and 2009 had created new rules to promote the idea of private enforcement even before the Directive was adopted. Some of these rules remain unique even now, notably the legal presumption of a 10% price increase for cartel cases. However, subsequent cases decided by Hungarian courts did not reflect the sophistication of existing substantive and procedural rules. There has only ever been one judgment awarding damages, while most stand-alone cases involved minor competition law issues relating to contractual disputes. The paper looks at the most important substantial rules of tort law (damage, causality, joint and several liability), the co-operation of competition authorities and civil courts, as well as at (the lack of) class action procedures from the perspective of the interaction of public and private enforcement of competition law.
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Prosser, Tony. "The Rule of Law, Economic Constitutions and Institutional Balance." Legal Issues of Economic Integration 46, Issue 4 (November 1, 2019): 301–16. http://dx.doi.org/10.54648/leie2019027.
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Economic constitutions may be ‘substantive’, seeking to implement fundamental economic policies or ‘the will of the people’ in relation to economic management, or ‘communicative’, establishing institutions for economic organisation and holding these accountable. In the context of fiscal policy there have been recent important successes for the ‘substantive’ model through the use of balanced budget rules, but a more ‘communicative’ approach can be seen in the development of fiscal councils. Similar moves to a more ‘communicative’ model can be found in monetary policy and in the regulation of public utilities, including in EU liberalization. If such a move is to be successful, the institutions involved need independence, though this should not be confused with complete autonomy of decision-making as decisions will often need to be taken within a broader framework of government policy. The ‘communicative’ model is the most appropriate one for an economic constitution in complex modern economies.