Artículos de revistas sobre el tema "Ex parte proceedings"
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Warbrick, Colin, Dominic McGoldrick y Eileen Denza. "II. Ex parte Pinochet: Lacuna or Leap?" International and Comparative Law Quarterly 48, n.º 4 (octubre de 1999): 949–58. http://dx.doi.org/10.1017/s0020589300063776.
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The Lords were not lost in admiration of section 20 of the State Immunity Act 1978. Lord Browne-Wilkinson described it as “strange” and “baffling”. It is certainly true that (as Lord Browne-Wilkinson continued) “Parliament cannot have intended to give heads of state and former heads of state greater rights than they already enjoyed under international law”.1 Nor was it intended that their rights should be inadvertently curtailed. The State Immunity Bill originally introduced into the House of Lords in 1977 would, by reflecting in UK statute law the European Convention on State Immunity2 make huge inroads into absolute sovereign immunity—tottering but not yet demolished through the repeated onslaughts of Lord Denning. The European Convention was however “essentially concerned with ‘private law’ disputes between individuals and States”.3 It was not intended to have any application to criminal proceedings—in so far as lawyers in 1977 even contemplated criminal proceedings in domestic courts against foreign States in their public capacity. It did not deal with the personal privileges or immunities of heads of state. There were no ready-made treaty rules on heads of state and no clear customary rules either.4
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Nash, Susan. "The Admissibility of Evidence in Extradition Proceedings: R v Governor of Brixton Prison, ex parte Levin". International Journal of Evidence & Proof 2, n.º 3 (julio de 1998): 198–204. http://dx.doi.org/10.1177/136571279800200304.
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Betancourt, Julio César. "What Are the Arbitral Tribunal's Powers in Default Proceedings?" Journal of International Arbitration 36, Issue 4 (1 de agosto de 2019): 485–502. http://dx.doi.org/10.54648/joia2019024.
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When the claimant serves on the defendant a notice in connection with the initiation of arbitral proceedings pursuant to an arbitration agreement, there is a legitimate expectation that both parties will actively participate in those proceedings and forcefully argue against one another in order to persuade the arbitral tribunal of the merits of the case in question. This expectation is generally met. However, there are cases in which the respondent decides not to take part in the proceedings, with the result that the arbitral tribunal is left with no option but to proceed on an ex parte basis. These types of cases have received relatively scant attention within the international arbitration literature. Nonetheless, the problem of default proceedings remains a matter of practical importance. This article is intended to fill this gap. It provides a practical insight into the arbitral tribunal’s powers in these kinds of proceedings (whether ad hoc or institutional), particularly, in the context of an international arbitration seated in London
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Ruckteschler, Dorothee y Anika Wendelstein. "Efficient Arb-Med-Arb Proceedings: Should the Arbitrator also be the Mediator?" Journal of International Arbitration 38, Issue 6 (1 de noviembre de 2021): 761–74. http://dx.doi.org/10.54648/joia2021035.
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The demand for hybrid proceedings combining elements of arbitration proceedings and mediation is growing continuously. The reason for this is the parties’ desire to make dispute resolution more efficient. A special type of hybrid proceedings are ‘arb-med-arb’ proceedings. These proceedings involve first initiating traditional arbitration proceedings. Before the taking of evidence begins, an attempt is then made to settle the dispute outside the arbitration proceedings in a separate mediation procedure. If the mediation fails, the arbitration proceedings are recommenced, and an arbitral award is issued. In the majority of arb-med-arb proceedings, a third party not involved in the arbitration proceedings is appointed as mediator. However, sometimes the parties ask the sole arbitrator or a member of the arbitral tribunal to act as mediator. This identity of the mediator and the (former and later) arbitrator raises many difficult questions, in particular, when the mediation fails. This article first analyses the pertinent most important regulations worldwide in arbitration and mediation laws, institutional arbitration, and mediation rules, and in soft law. Based on the results of this analysis, the authors develop some practical recommendations for the stakeholders in arb-med-arb proceedings. Arb-med-arb, Arbitrator, Mediator, Hybrid proceedings, Arbitration, Mediation, Same neutral, Declaration of consent, Ex parte communication, Caucusing
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Dahlberg, Hans y Marie Öhrström. "Proper Notification: A Crucial Element of Arbitral Proceedings". Journal of International Arbitration 27, Issue 5 (1 de octubre de 2010): 539–43. http://dx.doi.org/10.54648/joia2010031.
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Everyone experienced in international arbitration knows how important it is to ensure that the respondent is properly notified of the arbitration. No mistakes can be afforded at this crucial stage of the proceedings. Should the notification fail, the arbitral award cannot, and should not, be enforced. If the notification is inadequate, and the respondent fails to take part in the arbitral proceedings (so-called ex parte proceedings), there will unquestionably be difficulties in enforcing the arbitral award if the respondent chooses not to comply with it. It is very rarely that Swedish courts deny recognition and enforcement of foreign arbitral awards. However, in a recent case from the Swedish Supreme Court, enforcement of an award was denied in Sweden due to lack of proper notification. The case clearly illustrates how critical and important proper notification is in cross-border disputes. Moreover, the case raises questions about the arbitral institutions’ responsibility and practices in this regard.
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Garsson, Ross Spencer y Chinh H. Pham. "Strategies for post-grant reviews and other proceedings for challenging an issued patent". Nanotechnology Reviews 1, n.º 6 (1 de diciembre de 2012): 541–44. http://dx.doi.org/10.1515/ntrev-2012-0072.
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AbstractIn the past, there have been other means for challenging a patent (or prospective patent) at the United States Patent and Trademark Office (USPTO). These included preissuance submissions of prior art and ex parte reexaminations, which continue to be available. With the enactment of the Leahy-Smith America Invents Act (AIA) on September 16, 2011, additional means have been provided to entities so that they now have a greater set of potential procedures to challenge and neutralize patents – procedures that are both more economical and will take less time to resolve. Under the AIA, there are two new procedures for challenging a patent after issuance, namely, post-grant review (PGR) and inter partes review (IPR). This article provides an overview of these procedures, including their advantages and disadvantages, so that nanotech-related companies can decide which strategy may best fit them for particular patent invalidity challenges.
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Pearson, Sabrina y Christoph Müller. "Waving the Green Flag to Emergency Arbitration under the Swiss Rules: the Sauber Saga". ASA Bulletin 33, Issue 4 (1 de diciembre de 2015): 808–24. http://dx.doi.org/10.54648/asab2015061.
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On 11 March 2015 – just four days before the start of the 2015 Grand Prix season in Melbourne – the Australian courts enforced a Partial Award effectively ordering the Sauber Formula One team to allow the race car driver, Mr van der Garde, to race in the 2015 Formula One season as one of its team drivers. An appeal was rejected the following day and the parties thereafter settled just over 24 hours before the start of the Melbourne Grand Prix with Mr van der Garde not proceeding to the starting grid. This dramatic turn of events was the culmination of a dispute arising from the ousting of Mr van der Garde from the Sauber team’s 2015 lineup which started with the initiation of emergency arbitrator proceedings before the Swiss Chambers’ Arbitration Institution in November 2014. The present article focuses on the emergency arbitrator mechanism under the Swiss Rules in both theory and practice. The first part of the article examines the theory behind this mechanism by elucidating the main aims underlying Article 43 of the Swiss Rules and how the latter provision sets out to achieve such aims. A comparison with emergency arbitrator provisions under other arbitral rules highlights the heightened degree of flexibility in the emergency arbitrator mechanism under the Swiss Rules as well as the unique possibility of obtaining ex parte relief available under these Rules. The second part of the article focuses on the experience of the Swiss Chambers’ Arbitration Institution with respect to the emergency arbitrator mechanism with particular emphasis on the “Sauber saga” as an illustrative example of how effectively this mechanism is working in practice.
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Aktar, Sharmin. "Procedural Deficiencies in Administrative Tribunals of Bangladesh: Exploring Alternative Tactics". Dhaka University Law Journal 34, n.º 2 (23 de abril de 2024): 67–95. http://dx.doi.org/10.3329/dulj.v34i2.72300.
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The present article demonstrates that a troublesome reality is now being faced by Administrative Tribunals, leaving a room highlighting problems that have been unaddressed since its inception. It is found that the jurisprudential concept of locus standi, so far as Administrative Tribunals are concerned, is not wide and comprehensive, even then it need not be extended due to its short domain of jurisdiction as to subject matter. Furthermore, there is no scope to condone the delay according to relevant provisions. In addition, the Act of 1980 does not mysteriously fix a period for the restoration of a case or setting aside an ex parte order. Whereas most of the litigations in Tribunals concern a lack of procedural fairness in departmental proceedings, therein the principle of ‘Natural Justice’ is not recognized. These lapses seriously endangered the future of this justice system but neither the legislature nor the judiciary has so far taken any serious step to check these realities. Therefore, scattered procedural complexities have been accommodated in this article based on the Act of 1980 as well as the Rules of 1982; and cases and interviewing have been used as the point of reference, but at the same time earnest effort has been spent for finding out solutions, guided by expediency and tradition.
Dhaka University Law Journal, 2023, 34 (2), 67-95
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Collins, Shay. "The Death Knell and the Wild West: Two Dangers of Domestic Discovery in Foreign Adjudications". Michigan Law Review, n.º 122.1 (2023): 127. http://dx.doi.org/10.36644/mlr.122.1.death.
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Under 28 U.S.C. § 1782(a), parties to foreign legal proceedings can obtain discovery orders from United States federal courts. In other words, if a foreign party needs physical evidence located in—or testimony from a person residing in—the United States to support their claim or defense, they can ask a district court to order the production of that evidence. For almost two decades, § 1782(a) practice has operated as a procedural Wild West. Judges routinely consider § 1782(a) applications ex parte—that is, without giving the parties subject to the resulting discovery orders a chance to oppose them—and grant those applications at a staggering rate: more than 90% of the time. In its June 2022 decision in ZF Automotive US, Inc. v. Luxshare, Ltd., the Supreme Court transformed § 1782 jurisprudence for the worse. The Court held that private arbitral tribunals do not fall under § 1782(a)’s scope and that, as a result, parties cannot obtain discovery for use in foreign private arbitration under the provision. This Note argues that, after ZF Automotive, § 1782(a) jurisprudence contains two dangers: (1) it subjects some parties to burdensome discovery orders with few procedural safeguards, and (2) it prevents parties who have chosen to arbitrate rather than litigate from obtaining discovery entirely. This Note contributes to existing scholarship by proposing structural changes that would improve § 1782(a) practice. Specifically, it argues that courts cannot root out the procedural flaws that plague § 1782(a), and that, consequently, Congress should enact a new and improved § 1782 to address these manifold problems.
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von Segesser, Georg. "Vorsorgliche Massnahmen im Internationalen Schiedsprozess". ASA Bulletin 25, Issue 3 (1 de septiembre de 2007): 473–86. http://dx.doi.org/10.54648/asab2007045.
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The article deals with provisional and protective measures in international arbitration and in particular with such issues as the authority and the requirements to issue provisional and protective measures as well as the subject matter of such measures. With the main focus on the present best practice for international arbitration in Switzerland, the article briefly also touches upon the ICC Pre-Arbitral Referee, the new ICDR Emergency Measures Rule and the revision of article 17 of the UNCITRAL Model Law. With the enumeration of the different types of provisional and protective measures, e.g. orders to continue with a contractual performance, orders which prohibit behaviour likely to cause personal injury, orders with the purpose of securing the enforcement of the award, orders for security of costs, and further the possibility to render preliminary orders in ex-parte proceedings, the author shows that there is a vast field of application for interim remedies. Dependent on the applicable arbitration rules which may or may not grant authority to the arbitral tribunal to issue provisional and protective measures, it may be advisable to address the issue in the individual arbitration clause through specific provisions taking the special needs of the particular case into consideration. Provisional and protective measures in international arbitration are very helpful and efficient remedies to secure and enforce a party’s claims and prayers for relief. With the revised article 17 of the UNCITRAL Model Law and its forthcoming adoption into the national laws of many countries, a further major step into the direction of transnational arbitration rules for the recognition of provisional and protective measures issued by arbitral tribunals will be achieved.
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Espiniella Menéndez, Ángel. "Ley aplicable a las acciones concursales de reintegración (comentario a la STJUE de 8 de junio de 2017, Vinlys Italia) = Applicable law to reintegration actionsin insolvency proceedings (commentary to CJUE judgment 8 June 2017 Vinlys Italia)". CUADERNOS DE DERECHO TRANSNACIONAL 11, n.º 1 (11 de marzo de 2019): 739. http://dx.doi.org/10.20318/cdt.2019.4645.
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Resumen: en el Asunto Vinyls Italia, el TJUE recuerda que la ley rectora del concurso no es base suficiente para revocar un contrato perjudicial para el conjunto de los acreedores, si la contratante prueba que la ley rectora de tal contrato no permite su impugnación. Entre los aciertos de la Sentencia, destaca que esta excepción no debe amparar prácticas fraudulentas, además de que su tramitación procesal debe hacerse conforme a la lex fori. No obstante, la Sentencia presenta serias dudas al obviar que la determinación de la ley rectora del contrato, y su carácter internacional, deben hacerse por el Reglamento Roma I y no por el Reglamento europeo de insolvencia. También es dudosa la remisión a la lex fori para la posible aplicación de oficio de esta excepción; más bien debería jugar a instancia de parte de acuerdo con una interpretación literal y finalista del Reglamento europeo de insolvencia.Palabras clave: acciones concursales de reintegración, ley aplicable, ley rectora del concurso, ley rectora del contrato, tramitación procesalAbstract: in Vinyls Italy Case, the CJEU reminds that the law governing the insolvency proceeding is not a sufficient basis to revoke a contract detrimental to all creditors, if the contracting party provides proof that the law governing that contract does not allow its revocation. One of the hits of the Judgment is that this defense should not cover fraudulent practices, as well as procedural aspects shall be governed by lex fori. However, the Judgment presents serious doubts when it obviates that the determination of the law governing the contract, and its international consideration, shall be made by the Rome I Regulation and not by the European Insolvency Regulation. The reference to the lex fori is also doubtful in relation with the possible ex officio application of this defense; rather, that defense should play at the request of a party according to a literal and final interpretation of the European Insolvency Regulation.Keywords: reintegration actions, applicable law, law governing insolvency proceedings, law governing the contract, procedure
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Glandin, Sergey. "The law enabling sanctioned persons to move litigations to Russia: background and reasons". Meždunarodnoe pravosudie 11, n.º 1 (2021): 131–52. http://dx.doi.org/10.21128/2226-2059-2021-1-131-152.
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On 8th June 2020 Vladimir Putin signed into law a new bill amending Russian Commercial Code (RCC) introducing provisions that enable sanctioned persons to sue in Russian commercial courts their foreign counterparts irrespective of jurisdiction clause within the contract signed or international treaty. The main sponsor has given his name to the new Law, which is already known as Lugovoy Law. The sense of the Parliament was that to provide Russian sanctioned persons and their affiliates (both domestic and foreign) with extra support vis-à-vis ongoing and forthcoming litigations abroad. As of now, the RCC is supplemented by sections 248.1 and 248.2 and the commercial courts shall have exclusive jurisdiction over disputes involving persons that are subject to restrictive measures. The Law neither list countries and jurisdictions that shall impose sanctions on the Russian plaintiffs, nor specify type of restrictive measures. For instance, the Russian company sanctioned solely by Ukraine may prevent LCIA arbitration or High Court proceedings in England at the suit of its British opponent. In doing so, the Russian sanctioned Plaintiff is required adducing evidence to show deprivation from right to an effective remedy and to a fair trial abroad. Pursuant to the Lugovoy Law, the Plaintiff could be either an individual or a legal entity including foreign ones and be subject of restrictive measures imposed by any foreign country, union of states or by a body of certain interstate community. The Plaintiff’s home commercial court shall have inherent jurisdiction to entertain cases arising out of the new Lugovoy Law. Meanwhile section 248.2 of RCC enables sanctioned persons to seek injunctive relief precluding foreign opponents either commencing or continuing court proceedings in foreign fora. It is a kind of ex parte anti-suit injunction previously unknown to the Russian legal order. The sanctioned person may invoke 248.2 relief once mailed by opponent’s pre-trial letter. In support of the anti-suit injunction the Lugovoy Law allows sanctioned persons asking the court to order for security for costs. However, the amount sought shall not exceed the sum at stake in the main proceedings. Both orders made under the Lugovoy Law may be challenged on appeal at the Circuit Commercial court within one month. At the outcome, the protectionist logic of the legislature made foreign non-residents extraterritorially amenable to the jurisdiction of Russian commercial courts irrespective their personal law. This might provoke competition between jurisdictions and the emergence of two judicial acts on a dispute between the same persons on the same subject and grounds. If the major actors of the Russian economy decide to recourse to the provisions of the new law in disputes that have nothing to do with sanctions that may entail international tensions. The real purpose of the Lugovoy law is to create an extra tool to protect sanctioned persons and their interests. The opponents of those persons designated under some sanctions program shall not be able to recognise and enforce on the territory of Russia a judgment or arbitral award that in some extent appears to disadvantage Russian sanctioned persons. The author was followed by the objective to discover background and reasons behind the Lugovoy Law, as well as to attempt establishing its beneficiaries. Examining court proceedings versus Russian sanctioned persons abroad that have been commenced or disposed of within a month prior Andrei Lugovoy introduced his bill, it were found situations the Lugovoy Law would like to prevent and persons it tries to protect beforehand. In addition to this, the research focused on cases in Russian commercial courts wherein the Plaintiffs were trying to persuade the Commercial courts to apply the principles of Lugovoy bill before it has become law.
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Boraine, Andre y Corlia Van Heerden. "To Sequestrate or not to Sequestrate in View of the National Credit. Act 34 of 2005: A Tale of Two Judgments". Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 13, n.º 3 (19 de junio de 2017): 83. http://dx.doi.org/10.17159/1727-3781/2010/v13i3a2676.
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The purpose of this article is to consider the impact of some of the provisions of the National Credit Act[1] (the NCA) on sequestration applications in the form of applications for voluntary surrender, as well as compulsory sequestration. This matter is of particular relevance in view of two recent cases: in Ex parte Ford[2] the court refused to grant a sequestration order following an application for voluntary surrender since the applicant-debtors did not, according to the court, avail themselves adequately of debt relief measures provided for by the NCA where the bulk of the debt consisted of credit agreements regulated by the NCA; and in a more recent judgment, Investec Bank Ltd v Mutemeri,[3] the respondent-debtors, namely the consumers, opposed an application for compulsory sequestration on the basis that the application for debt restructuring pursuant to debt review in terms of the NCA barred the applicant from proceeding with the application for compulsory sequestration, since they argued that such an application amounted to debt enforcement. This discussion therefore considers the impact of the debt relief remedies and certain special provisions that apply to debt enforcement in terms of the NCA on sequestration procedures provided for in the Insolvency Act[4] in view of the above judgments.[1] 34 of 2005.[2] 2009 3 SA 376 (WCC).[3] 2010 1 SA 265 (GSJ).[4] 24 of 1936.
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Marr, Kendra D., Beatrice S. Knudsen, Jaime M. Gard, Malia Bird, Raymond B. Nagle y Anne E. Cress. "Abstract 3810: Muscle invasion produced drug-resistant and bone metastatic prostate cancer". Cancer Research 82, n.º 12_Supplement (15 de junio de 2022): 3810. http://dx.doi.org/10.1158/1538-7445.am2022-3810.
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Abstract Overtreatment of prostate cancer is a significant source of patient morbidity and cost. The human prostate is bounded by a smooth muscle capsule, and aggressive tumors invade through the muscle layer, called extracapsular extension (ECE), to escape organ confinement. The presence of ECE defines pT3a pathologic stage and is associated with increased risk of biochemical recurrence, metastases, and cancer-specific mortality. Although muscle invasion is required for ECE and metastatic spread, both the invasive tumor network phenotypes and muscle responses are understudied. The goal was to probe the molecular events of ECE to understand this critical step in metastasis. Muscle invasion of prostate cancer cell lines was tested in vivo by injecting cells into the peritoneal cavity of male NSG mice. The cells colonize the inferior surface of the muscular respiratory diaphragm and invade through to the superior surface. To explore transcriptional regulators, we performed whole genome RNAseq on cells from three compartments: (1) “Inferior” non-invading cells on the underside of the diaphragm; (2) “Muscle-resident” cells that have invaded and now reside within the diaphragm muscle; and (3) “Superior” cells that have completely traversed the diaphragm. Tumors cells reaching the superior side of the diaphragm were established ex vivo as polyclonal cell lines termed the “KM” series. RNAseq reveals 1,482 differentially expressed sequences (DES) between Inferior and Muscle-resident cells, 253 DES between Muscle-resident and Superior cells, and 896 DES between Inferior and Superior cells (padj <0.05, |fold change| ≥ 1.3). Further, we identified 84 DES that overlap between the Superior vs. Muscle-resident and Inferior vs. Muscle-resident groups, highlighting candidate gene changes unique to cancer cells in a muscle microenvironment. Importantly, 4,076 differentially expressed, mouse-specific RNA sequences (padj < 0.05, |fold change| ≥ 2.0) highlight pathways within muscle that respond to the presence of invasive tumors. Strikingly, the KM series have aggressive features including newly acquired bone metastasis and resistance to a taxane. The gene expression patterns imply a dominant effect of the muscle microenvironment in evoking a new and transient tumor transcriptional response as revealed by the DESs. Independent of this response, the KM sub-populations successfully navigating the muscle were more aggressive in laboratory assays, including bone metastatic potential and chemotherapeutic resistance. These studies support the hypothesis that successful invasion into and through a contractile muscle layer results in aggressive cancer cells. Using the in vivo assay provides the unique ability to parse out unexplored patterns of changes that occur in early, muscle-invasive disease to improve prostate cancer patient selection for definitive treatment versus active surveillance. Citation Format: Kendra D. Marr, Beatrice S. Knudsen, Jaime M. Gard, Malia Bird, Raymond B. Nagle, Anne E. Cress. Muscle invasion produced drug-resistant and bone metastatic prostate cancer [abstract]. In: Proceedings of the American Association for Cancer Research Annual Meeting 2022; 2022 Apr 8-13. Philadelphia (PA): AACR; Cancer Res 2022;82(12_Suppl):Abstract nr 3810.
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"TEFAL S.A.S.’S TRADE MARK APPLICATION". Reports of Patent, Design and Trade Mark Cases 139, n.º 5 (1 de mayo de 2022): 325–40. http://dx.doi.org/10.1093/rpc/rcad003.
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Abstract H1 Trade marks—Applications—Registrability—Distinctiveness—Acquired distinctive character—Ex parte proceedings—Survey evidence—The Interflora guidelines—Registry practice—Appeal to Appointed Person
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"Clarification on the Procedure for Seeking Review of a Finding of a Substantial New Question of Patentability in Ex Parte Reexamination Proceedings". Biotechnology Law Report 30, n.º 1 (febrero de 2011): 133–34. http://dx.doi.org/10.1089/blr.2011.9999.
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Bantekas, Ilias. "Court-Ordered Interim Measures in International Arbitration: A Comparative Approach". Journal of Law and Commerce 41, n.º 2 (13 de julio de 2023). http://dx.doi.org/10.5195/jlc.2023.257.
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This paper argues that there is a distinct cross-border law concerning court-ordered interim measures in aid of international arbitration, which is made up of two key (intertwined) sources, namely: the relevant provisions of the UNCITRAL Model Law on International Commercial Arbitration and supporting case law and legislation in both Model Law states and non-Model Law states. The principles identified in this paper are assumed to qualify as general principles of law. In order for a court at the seat to grant interim relief in international arbitral proceedings the requesting party must demonstrate a prima facie case worthy of consideration, the likelihood of irreparable harm and a balance of inconvenience. There is at present no general consensus as to ex parte interim measures, with many states and national courts showing significant reluctance to grant these on account of the absence of procedural guarantees that they entail. In equal measure, in the absence of bilateral or multilateral treaties that allow national courts to recognize and enforce foreign interim measures in respect of arbitral proceedings seated abroad, states are equally reluctant to allow parties seated in other jurisdictions to approach their courts for interim relief on the ground that the other party has assets or interests there. Although the courts of some powerful nations allow for such requests, there is no general rule in this regard and none is expected in the near future.
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Sokolova, Mariia. "The Role and Position of AI Evidence in Civil Litigation". Medicine, Law & Society 16, n.º 1 (28 de abril de 2023). http://dx.doi.org/10.18690/mls.16.1.169-190.2023.
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This article examines the role and position of AI evidence in civil litigation. Despite the sporadic appearance of such evidence in court proceedings, it has the potential to revolutionize the evidential field and change our understanding of the nature and evidential qualities of existing types of evidence. After a thorough examination of the key technical specifications of AI, different classifications of AI evidence and various approaches to treatment of AI evidence, the author suggests how AI evidence should be treated according to the Slovenian Civil Procedure law. It is inferred that standard evidence rules can be applied to AI evidence, if the probative value of such evidence does not depend on the AI involved. In cases where probative value of evidence depends on the involved AI system, AI evidence can nevertheless be treated as witness or expert evidence, or, precisely, as ex parte affidavit or private expert opinion depending on the level of human or AI contribution to the content of AI evidence. The author concludes that black box and bias problems of AI systems generating evidence have to be properly addressed in order for AI evidence to achieve full evidential value and reliability.
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Sasha-Lee Afrika. "DO SEQUESTRATION PROCEEDINGS FALL WITHIN THE OVERALL AMBIT OF “ANY PROCEEDINGS” AS STIPULATED IN SECTION 130(3) OF THE NATIONAL CREDIT ACT 34 OF 2005?* Naidoo v Absa Bank Limited [2010] 4 All SA 496 (SCA)". Obiter 33, n.º 2 (1 de septiembre de 2021). http://dx.doi.org/10.17159/obiter.v33i2.12168.
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Naidoo v Absa Bank Limited is one of the few cases by a court in which the interface between the insolvency law and the National Credit Act 34 of 2005 arose since the commencement of the latter in 2006. Other cases highlighting this interface include Investec Bank Ltd v Mutemeri (2010 (1) SA 265 (GSJ)) and Ex Parte Ford (2009 (3) SA 376 (WCC). The enactment of the National Credit Act has had significantconsequences for the scope of remedies available to both debtors and creditors in terms of the insolvency law. The National Credit Act did not change the Insolvency Act 24 of 1936 dramatically. Section 84 of the Insolvency Act, which deals with goods delivered in terms of an instalment agreement to a debtor whose estate became subsequently sequestrated, was one section which was changed by the National Credit Act. However, the National Credit Act is now dealing exclusively with certain debts and the enforcement of those debts. These are debts arising out of credit agreements and therefore excluding the application of insolvency law when dealing with such debts. Section 4 of the National Credit Act determines when the Act is applicable. The National Credit Act provides sophisticated measures during a situation when consumers who are parties to credit agreements, which are not exempted from the application of the National Credit Act, are unable to pay their debts. These measures include debt reviewing, the declaration of a credit agreement as reckless credit and debt restructuring (see s 86(7) of the National Credit Act for the recommendations which a debt counsellor maymake after reviewing a consumer’s debts). In all other instances, normal civil remedies such as a garnishee order, sale in execution, an order for payment in instalments and the measures of the insolvency law are still means of redress available to a creditor. It issubmitted that this will not be the only time in South Africa where a possible overlap of remedies available under both insolvency law and under the National Credit Act will be adjudicated. Future motions will either try to enforce the application of the insolvency law or question its application, arguing for the application of the more specialized National Credit Act as seen in Naidoo v Absa Bank Limited.
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López Bermejo, Óscar. "Elección del procedimiento adecuado, modificaciones sustanciales de condiciones de trabajo -art. 138 LRJS- o derechos de conciliación de la vida personal, familiar y laboral -art. 139 LRJS-; uso de la facultad judicial del art. 102.2 LRJS reconducción del procedimiento en el caso de inadecuación." Revista de Jurisprudencia Laboral, 16 de julio de 2023. http://dx.doi.org/10.55104/rjl_00459.
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Trabajadora solicita a su empresa la reincorporación al puesto de trabajo tras excedencia -ex art. 46-3 ET- para el cuidado de su segundo hijo menor y, en la misma solicitud, incluye su petición de reducción de la jornada de trabajo por guarda legal de hijo en los mismos términos -mismo porcentaje de reducción y misma concreción horaria- que ya disfrutó con el nacimiento de su primer hijo. Ante esta segunda petición, la empresa le comunica que acepta la reducción propuesta del 50% de la jornada ordinaria, pero no la concreción de horario interesada por la trabajadora, pues durante el periodo de tiempo en que estuvo suspendida su relación laboral el horario de atención al público ha cambiado en la demandada por la reestructuración habida como consecuencia de la reorganización del trabajo y del personal. La persona trabajadora interpone demanda de modificación sustancial de condiciones de trabajo -art. 138 LRJS-, acumulando la pretensión de vulneración de derechos fundamentales, que es estimada en la instancia e, interpuesto recurso de suplicación por la mercantil demandada, la Sala del Tribunal Superior de Justicia aprecia de oficio la excepción de inadecuación de procedimiento y desestima la demanda, asentando su decisión en que la demandante tenía una jornada a tiempo completo justo en el momento anterior a hacerse efectiva la excedencia disfrutada, de manera que la negativa de la empresa relativa a la concreción horaria no supone una modificación de ninguna condición de trabajo. La trabajadora debió reaccionar ante la negativa de la empresa en cuanto a la concreción horaria a través de la modalidad procesal de derechos de conciliación de la vida personal, familiar y laboral -art. 139 LRJS- La Sala IV del Tribunal Supremo en la sentencia analizada asume en parte el pronunciamiento del Tribunal de Suplicación, de manera que sí admite el criterio procesal relativo a la inadecuación de procedimiento pero no la decisión de desestimación al ser esta última una medida excepcional, y entiende que debe cobrar presencia la facultad del art. 102.2 LRJS, por lo que procede dar el asunto la tramitación del procedimiento del artículo 139 LRJS, acordando devolver actuaciones al Juzgado de lo Social Worker woman requests his company to return to work after leave -ex art. 46-3 ET- to care for her second minor child and, in the same application, she includes the request for reduction of working hours due to legal custody of children on the same terms -same rate of reduction and same time specification- as she already enjoyed with the birth of her first child before the leave which ends. In response to this second request, the company informs that it accepts the proposed reduction of 50% of the normal working day, but not the specificity of schedule interested by the worker because, during the period in which their employment relationship was suspended, the hours of public service have changed in the defendant due to the restructuring as a result of the reorganization of work and staff. The worker brings an action for substantial modification of working conditions -art. 138 LRJS- and joins the claim of infringement of fundamental rights, which is upheld in the First Instance; filed an application by the defendant, the Chamber of the High Court of Justice assessed ex officio the procedural inadequacy and dismissed the application, setling its decision that the applicant had a full-time working day at the time before the leave was taken, so that the company's refusal to specify the time does not imply a modification of any working condition. The worker had to react to the company's refusal to specify time through the procedural modality of rights of reconciliation of personal, family and work life -art. 139 LRJS- The Fourth Chamber of the Supreme Court in the judgment analyzed shares partly the pronouncement of the Court of Appeal, so that it does accept the procedural criterion of procedural inadequacy, but not the decision to dismiss -the latter being an exceptional measure-, and understands that the faculty of art 102.2 LRJS must be present, so it is appropriate to give the case the processing of the procedure of article 139 LRJS, agreeing to return proceedings to the Social Court.