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1
Rosenne, Shabtai. « The International Court of Justice – New Practice Directions ». Law & ; Practice of International Courts and Tribunals 8, no 2 (2009) : 171–80. http://dx.doi.org/10.1163/157180309x451079.
Texte intégralRésumé :
AbstractNew Practice Directions III, VI and XIII, deal with the written pleadings and the oral pleadings and the relations between the two. This Note examines these new Practice Directions in light of relevant provisions of the Statute and the Rules of Court and suggests that the Court exercise its powers to give the parties suggestions regarding the content of the written pleadings in regular interlocutory stages. This is to meet the Court's desire to maintain succinctness of the written pleadings without prejudice to their adequacy.
2
Chayka, K. L. « The Genesis of International Justice ». Rossijskoe pravosudie 2 (28 janvier 2021) : 13–19. http://dx.doi.org/10.37399/issn2072-909x.2021.2.13-19.
Texte intégralRésumé :
The increasing number of international courts and their specialisation and the penetration of legal positions developed at the supranational level into the practice of domestic courts raise the question of the nature of international justice and its peculiarities. The concepts of national justice and the systemic nature of international courts are well developed in the doctrine, but the issue of international justice remains under-researched. Such an analysis is particularly important because of Russia's membership of the Eurasian Economic Union and the active use of supranational court positions in domestic law enforcement, including judicial enforcement. This article examines the current and historical approaches to the understanding of justice in Russian legal theory and the views of foreign scholarship on procedural justice, which is seen as equivalent to the category of «justice». The aim of this study is to formulate a concept of justice that is free from the peculiarities of national legal systems and able to explain the processes inherent in international courts. The question of the specific features of international justice will be answered, preceded by a reflection on the definition of «international judicial body» in the context of approaches of domestic as well as European. The method of induction has made it possible to identify the specific features inherent in universal international courts as well as in courts of integration associations and, on this basis, to provide a definition for «international judicial body». A comparison of the powers vested in the Court of Justice of the Eurasian Economic Union, the range of persons having the possibility to initiate dispute resolution, the binding and enforceable nature of its acts with similar rules in the activities of the UN International Court of Justice, the European Court of Human Rights and the Court of Justice of the European Union provides empirical material for analysis of the specific features of the Eurasian dispute resolution body justice. The study concludes that the modern concept of national and international justice has its philosophical basis in the genesis of ideas about human rights and fundamental freedoms. International justice, however, is defined as the legal and procedural activity of an independent judiciary to apply the law and resolve legal conflict.
3
Nicholson, Rowan. « The International Court of Justice as a “Shortcut” to Identifying Custom ». Law & ; Practice of International Courts and Tribunals 20, no 3 (29 novembre 2021) : 490–518. http://dx.doi.org/10.1163/15718034-12341456.
Texte intégralRésumé :
Abstract A frequently used shortcut to identifying rules of customary international law is to rely on statements by the International Court of Justice instead of conducting a more cumbersome investigation of state practice and opinio iuris. The purpose of this article is to consider when the Court’s statements align or may come to align with customary rules and, consequently, to what extent this shortcut is justified. Its value is in systematically exploring ideas that international lawyers may already have internalised; it may also help students of the subject to understand why reliance is placed on judicial decisions. Often, the Court simply elucidates pre-existing customary rules. But examples such as Factory at Chorzów, Fisheries, and Reservations to the Genocide Convention suggest that an additional or alternative justification for the shortcut may be stronger. This is the tendency of states to endorse or “ratify” statements by the Court through subsequent practice and opinio iuris.
4
Tang, Zheng Sophia. « EFFECTIVENESS OF EXCLUSIVE JURISDICTION CLAUSES IN THE CHINESE COURTS—A PRAGMATIC STUDY ». International and Comparative Law Quarterly 61, no 2 (avril 2012) : 459–84. http://dx.doi.org/10.1017/s0020589312000097.
Texte intégralRésumé :
AbstractChinese judicial practice demonstrates great diversity in enforcing exclusive jurisdiction clauses. In practice, the derogation effect of a valid foreign jurisdiction clause is frequently ignored by some Chinese courts. It may be argued that these Chinese courts fail to respect party autonomy and international comity. However, a close scrutiny shows that the effectiveness of an exclusive jurisdiction clause has close connections with the recognition and enforcement of judgments. If the judgment of the chosen court cannot be recognized and enforced in the request court by any means, the request court may take jurisdiction in breach of the jurisdiction clause in order to achieve justice. Chinese judicial practice demonstrates the inevitable influence of the narrow scope of the Chinese law in recognition and enforcement of foreign judgments. It is submitted that the Chinese courts do not zealously guard Chinese jurisdiction, or deliberately ignore party autonomy and international comity. Instead, the Chinese courts have considered the possibility of enforcement of judgments and the goal of justice. Applying the prima facie unreasonable decision test is the best the courts can do in the specific context of the Chinese law. The status quo cannot be improved simply by reforming Chinese jurisdiction rules in choice of court agreements. A comprehensive improvement of civil procedure law in both jurisdiction rules and recognition and enforcement of foreign judgments is needed.
5
Keith, Ken J. « The Development of Rules of Procedure by the World Court Through its Rule Making, Practice and Decisions ». Victoria University of Wellington Law Review 49, no 4 (15 novembre 2018) : 511. http://dx.doi.org/10.26686/vuwlr.v49i4.5338.
Texte intégralRésumé :
Courts and tribunals follow procedures in reaching their decisions. Those procedures should provide the parties, appearing before an independent, impartial and qualified body, with a full and equal opportunity to present their cases and to challenge those presented against them. The process should also provide the body with sufficient material for it to resolve the dispute. The procedural rules may be established by those who set up the court or tribunal, including treaty makers and legislatures, or by the body itself through the exercise of its general rule making power and its rulings and practice in particular cases. This article considers the work of the Permanent Court of International Justice and its successor, the International Court of Justice, over almost the last 100 years in developing their procedures. A striking feature of the history is that the Statutes of the two Courts have remained essentially unchanged and that it is the Courts themselves that have developed the procedures which they and the parties are to follow. Along with the development of the law and practice of evidence in the two Courts, the history contributes an answer in one area to recurring questions about the best means of clarifying and making law.
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Klyuchnikov, Andrew Yu. « The main approaches to the definition of the international courts’ competence ». Tyumen State University Herald. Social, Economic, and Law Research 5, no 3 (28 octobre 2019) : 128–43. http://dx.doi.org/10.21684/2411-7897-2019-5-3-128-143.
Texte intégralRésumé :
The rules on the competence of international courts determine the nature of the cases they resolve and the conditions for their admission to proceedings. The possibility composition of the court considers each case individually following the principle of jurisdiction to decide the jurisdiction due to the lack of a clear regulatory framework. Each international court of justice, relying on the international law, is solely competent to resolve doubts as to its own jurisdiction. This study aims to identify the approach of courts to solving jurisdictional problems in practice. The material for the study includes the cases of international courts, doctrinal comments, and legal positions of prominent researchers of international justice. The author describes the basic interpretative framework procedure, restraint, activism in the justification, and the lack of personal jurisdiction. Thus, if the international court of justice has no confidence in the existence of competence on the subject of the dispute, it will not take measures to justify it. The brevity of the position on the issue will be due to interpretative restraint. Activism arises when the international court of justice seeks to achieve a procedural result, substantiate the rationality of the result of interpretation or the impossibility of achieving it. Science has not resolved the issue of factors that may affect the limits of interpretation by international courts of their own competence.
7
Jia, Tingkai. « Reviews on the Application of Effectivités in 2012 Nicaragua and Colombia Case ». Asian Journal of Social Science Studies 7, no 1 (25 janvier 2022) : 66. http://dx.doi.org/10.20849/ajsss.v7i1.993.
Texte intégralRésumé :
Effectivités is a unique principle developed in the process of settling territorial disputes by the International Court of Justice. It is gradually developed in judicial practice and plays a very important role in settling territorial disputes. From the perspective of the case of territorial and maritime dispute between Nicaragua and Colombia, which was tried by the International Court of Justice in 2012, and combined with other cases that applied Effectivités, this paper analyzes and discusses the basic theoretical basis and considerations of the application of this principle by the International Court of Justice, and the relationship between this principle and other applicable sources or rules of international law.
8
Janssen, A. D. M. « Country Note : International Trade, a Never-Ending Trend ». Intertax 48, Issue 12 (1 novembre 2020) : 1155–68. http://dx.doi.org/10.54648/taxi2020115.
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This article describes the recent developments in international trade and VAT. International trade has become an integral part of our economy and the judicial calendar of the EU Court of Justice. An interesting case regarding the intra-Community transport of goods is the Herst case. This case is an example of how the case law of the EU Court of Justice provides some guidance regarding VAT rules concerning the intra-Community supply of goods and chain transactions prior to 1 January 2020. As of 1 January 2020, the new provisions established with the 2020 Quick Fixes are applicable that establish rules, among others, for the attribution of the intra-Community transport of goods to one of the supplies within a chain transaction. Despite the guidance of the EU Court of Justice provided in the Herst case, there continues to be much uncertainty. Although the Quick Fixes seem to provide harmonization and simplification of the EU VAT rules, the strengths and weaknesses of the Quick Fixes will have to be demonstrated in practice. This is also valid with respect to the distance selling rules. In the KrakVet and the Healthspan case, preliminary questions are referred to the EU Court of Justice regarding the transport requirement. This author expects that many new cases will follow. International trade as a trend in EU VAT case law will probably never end. Value added tax, intra-community supply, intra-community acquisition, chain transaction, ascribing intra-community transport to one supply within the supply chain, exemption of supplies of goods dispatched or transported within the EU, transfer of the right to dispose of goods as owner, quick fixes, distance sales of goods, place of supply of goods with transport, Herst, Krakvet, healthspan, EU Court of Justice.
9
Arsić, Katarina. « Criminal immunity of state officials in international law ». Bezbednost, Beograd 64, no 2 (2022) : 145–59. http://dx.doi.org/10.5937/bezbednost2202145a.
Texte intégralRésumé :
The paper analyzes the practice of the states and international courts regarding the recognition, non - recognition or withdrawal of immunity in cases which are in accordance with international criminal law and against state officials, including highlevel officials. This paper offers an analysis of the historical role of World War II in recognizing individual criminal responsibilities in international law, enabling the criminal process and prosecuting officers for violating jus cogens norms. In this sense, we should distinguish the immunity ratione personae (personal immunity) from the immunity ratione materiae (functional immunity). High state officials such as the Head of State, the Prime Minister and the Minister of Foreign Affairs have the immunity ratione personae. On the other hand, the immunity ratione materiae is enjoyed by other officials. While personal immunity derives from the function performed by high-rank officials and should ensure unhindered performance of their duties, functional immunity is the immunity of the state and should primarily protect the state, not the official, because the official acts only on behalf of the state. Based on this, the paper points out that the practice of domestic courts, the International Court of Justice and the International Criminal Court in recognizing or withdrawing immunity of state officials is inconsistent. The paper analyzes the Seventh Report on Immunity of State Officials from foreign criminal jurisdiction by the Commission on International Law and indicates the areas in which the articles of a potential document on the criminal immunity of state officials in international law should be elaborated. In addition to contradictory judgments of the International Court of Justice and the International Criminal Court, the impossibility of defining uniform rules arises because the states have different understanding and believe that the dignity of the state will be endangered if their high officials are prosecuted by courts of other states. The paper concludes that further monitoring of the work of relevant international and domestic courts is needed in order to uniform rules and produce a draft document on criminal immunity of state representatives in international law based on uniform practice.
10
Samovich, Yu V. « About International Sports Justice ». Rossijskoe pravosudie 8 (20 juillet 2020) : 53–58. http://dx.doi.org/10.37399/issn2072-909x.2020.8.53-58.
Texte intégralRésumé :
Justice, as a model of equity, is becoming an extremely demanded way of clarifying the relations of counterparties in most spheres of human life. This time, the question will be about sports disputes, whose appearance provoked first a «doping scandal» with Russian athletes, and then, no less scandalous proceedings of the Sports Arbitration Court. The purpose of this article is to conduct a review of sports disputes considered in international instances to analyze the objectivity and adequacy of the existing procedure for the consideration of sports disputes and the possibility of developing uniform rules and the existence of grounds for considering sports disputes in the European Court of Human Rights The author used for this such methods: – induction: based on an analysis of the consideration of sports disputes at the ECHR, it was concluded that the practice does not meet the requirements of the principle of respect for human rights, – deduction: a hypothesis of contradictions is formulated in the framework of the consideration of disputes by sports organizations and judicial institutions, statistical analysis: comparison and generalization of statistical data on the considered cases, – formal legal: analysis of the practice of judicial and quasi-judicial institutions for the consideration of sports cases. As a hypothesis, the thesis is put forward that the existing procedures of sports organizations violate the rights of the individual, justifying this fact with the specifics of such procedures as anti-doping checks, etc.
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Aragonés Molina, Laura. « MISCELÁNEA : LA BUENA ADMINISTRACIÓN DE JUSTICIA EN LA JURISDICCIÓN INTERNACIONAL PENAL : EXCEPCIONES A LA APLICACIÓN ESTRICTA DE LA NORMATIVA PROCESAL EN MATERIA DE RECURSOS ». Revista española de derecho internacional 73, no 2 (25 juin 2021) : 193–228. http://dx.doi.org/10.17103/redi.73.2.2021.1b.01.
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International courts and tribunals refer to the principle of good administration of justice to justify certain decisions that do not find a legal basis expressly provided neither in their statutes nor in their rules of procedure or when they interpret the procedural rules in a flexible manner. In those cases, they exercise inherent powers necessary to ensure the fulfilment of their judicial function. This principle, whose content is imprecise, has two main purposes: to safeguard the proper administration of proceedings and to guarantee the justice of the decision. In this paper we study several manifestations of this principle in the application and interpretation of the procedural provisions of revision and additional evidence in appeal. We focus on the judicial practice of the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda, and the International Residual Mechanism for Criminal Tribunals. These precedents can be extremely useful when litigating in the International Criminal Court as well as in other international courts.
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Chen, Siyuan. « Re-assessing the Evidentiary Regime of the International Court of Justice : A Case for Codifying Its Discretion to Exclude Evidence ». International Commentary on Evidence 13, no 1 (1 janvier 2015) : 1–40. http://dx.doi.org/10.1515/ice-2016-0001.
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AbstractLike many international tribunals, the International Court of Justice subscribes heavily to the principle of free admissibility of evidence. Neither its statute nor rules impose substantive restrictions on the admissibility of evidence, whether by way of exclusionary rules or an exclusionary discretion. Instead, the court’s practice has been to focus on evaluating and weighing the evidence after it has been admitted. There are certainly features of the ICJ that sets it apart from domestic courts and arguably justify such an approach: the ICJ is for settling disputes between sovereign states; it does not use a typical fact-finding system; its rules and practices reflect a mix of civil and common law traditions; and traditional exclusionary rules were not conceived with inter-state dispute resolution in mind. Yet for any judgment to have legitimacy, the evidential foundations must be strong and there should be a coherent and principled mechanism to sieve out problematic evidence at an early stage. Having this mechanism can also ensure that resources are not wasted and rights protected. Through an examination of the court’s rules and jurisprudence and the rules and practices of other international tribunals, this article makes the case for the codification of a provision that gives the ICJ an exclusionary discretion.
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Schwebel, Stephen M. « Ad Hoc Chambers of the International Court of Justice ». American Journal of International Law 81, no 4 (octobre 1987) : 831–54. http://dx.doi.org/10.2307/2203413.
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The International Court of Justice formed its first Chamber for dealing with a particular case in 1982; its second, in 1985; and, in 1987, its third and fourth ad hoc Chambers. This article examines what appears to be an accelerating trend toward recourse to ad hoc Chambers in the light of the provisions of the Statute and Rules of the Court and of its pertinent practice to date. The discussion seeks to elucidate four principal questions: •What is the subject matter that such a Chamber may properly dispose of?•Must such a Chamber be representative of the main forms of civilization and of the principal legal systems of the world?•How many judges shall constitute an ad hoc Chamber?•Shall the parties to the case have a voice in determining the composition of the Chamber as well as in the number of judges constituting it? Finally, this article appraises the record and potential of recourse to Chambers for dealing with a particular case.
14
Skelton, Ann. « Child Justice in South Africa : Application of International Instruments in the Constitutional Court ». International Journal of Children’s Rights 26, no 3 (6 août 2018) : 391–422. http://dx.doi.org/10.1163/15718182-02603003.
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International law provides rights, rules and principles that guide the manner in which children in conflict with the law should be treated. When children’s rights are violated, this international law framework can be used by lawyers and courts to identify the nature of the violation and determine the remedies that must be taken to redress the harm and alter law or practice to ensure such breaches are avoided in the future. This article describes the international framework and its effective application in the South African courts, through a discussion of four Constitutional Court cases dealing with children in conflict with the law. The article discusses the arguments that were advanced in the cases and illustrates the litigation strategies that were employed. The case discussions explore the extent to which the international law was applied, directly or indirectly, by the courts, and assess the jurisprudential and practical impact of the international instruments.
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Cameron, Rose, et Julia Sherman. « Reflections on Judge Crawford’s Contributions to the International Court of Justice ». Australian Year Book of International Law Online 40, no 1 (7 décembre 2022) : 218–44. http://dx.doi.org/10.1163/26660229-04001010.
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Abstract James Crawford was sworn in as a Judge of the International Court of Justice on 6 February 2015. In his nearly seven years on the bench, Judge Crawford made a significant contribution to the jurisprudence, the procedures, and the working environment of the Court. First, Judge Crawford’s declarations and separate and dissenting opinions are discussed in this article, as these best illustrate his personal contributions to the Court’s jurisprudence. Second, Judge Crawford propounded procedural change at the Court long before he joined its bench and he was able to make good on some of these proposals after joining the Court, in particular as a member of the Court’s Rules Committee. Amendments to the Rules of Court and the Court’s Practice Directions made during his time of the bench are discussed in this article, as well as Judge Crawford’s questions to parties during oral proceedings. Finally, this article recognises Judge Crawford’s enormous contribution to the working environment of the Court. He had a lightness that lifted the mood in the otherwise solemn corridors of the International Court. He strived to keep his own and—where possible—other staff happy and motivated. Judge Crawford’s support for the staff union was invaluable. These are just some examples of why Judge Crawford should be remembered for his kind temperament, his patience, and his generosity in mentoring aspiring international practitioners and scholars, over and above his professional achievements.
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Johnston, Katie A. « The Nature and Context of Rules and the Identification of Customary International Law ». European Journal of International Law 32, no 4 (1 novembre 2021) : 1167–90. http://dx.doi.org/10.1093/ejil/chab089.
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Abstract The International Court of Justice (ICJ) regularly invokes a two-element test for the identification of customary international law: state practice accompanied by opinio juris. Yet the Court’s application of this test has appeared inconsistent. In some cases, an absence of evidence of opinio juris leads to a finding that an alleged rule of customary international law does not exist; yet in other cases, there is no clear evidence of opinio juris on the part of states participating in the practice, but the Court nevertheless concludes that the alleged customary rule exists. In other cases, the Court concludes that a customary rule exists apparently based on evidence of opinio juris alone. This article argues that these judgments do not undermine the ICJ’s claim to be applying a two-element analysis but reveal something fundamental about how customary international law is identified – namely, that how the existence of state practice and opinio juris is evaluated may vary depending on the nature of the customary rule under investigation (for example, whether it is a permissive or prohibitive rule) and the context of underlying international law rules in which that alleged new customary international law rule is located.
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Roeben, Volker. « Institutions of International Law : How International Law Secures Orderliness in International Affairs ». Max Planck Yearbook of United Nations Law Online 22, no 1 (7 octobre 2019) : 187–217. http://dx.doi.org/10.1163/18757413_022001009.
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This article is a plea for adopting a reinvigorated, analytic perspective on contemporary international law, building on MacCormick’s powerful insights into law’s essential structure. The article proposes that international law as whole forms an institutional normative order. The idea of institutional normative order has certain conditions. These link a normative conception of international law with the means of achieving it. The article makes three arguments on these conditions. It first argues that the function of international law is to create order in the sense of orderliness for its principal users, States and international organizations. It then claims that international law establishes normative order through international rules that are binding from the viewpoint of States and international organizations. An international process of rule-making embedded in State practice turns norms into such rules. The process is being held as a bindingness-creating mechanism because it formalizes rules through recognized means and organizes collective consent to authorize them. States and international organizations then apply these rules by exercising international legal powers under a defeasible presumption of legality. Third, the article argues that this normative order becomes institutionalized. The institutions of international law are grounded in ideas about agencies, arrangements, and master-norms that integrate the mass of international rules and principles. The article exemplifies these arguments for UN-driven international law with the relating recent jurisprudence of the International Court of Justice (ICJ), the International Tribunal for the Law of the Sea (ITLOS) and Annex vii tribunals, and the Court of Justice of the European Union. The upshot of this idea of international law as institutional normative order is unity, or indeed a system. No part of international law can be seen outside of this context and hence the burden of argumentation is on those wishing to make the case for divergence.
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Odermatt, Jed. « THE DEVELOPMENT OF CUSTOMARY INTERNATIONAL LAW BY INTERNATIONAL ORGANIZATIONS ». International and Comparative Law Quarterly 66, no 2 (14 mars 2017) : 491–511. http://dx.doi.org/10.1017/s0020589317000112.
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AbstractIn his Fourth Report on the Identification of Customary International Law (2016), Special Rapporteur Sir Michael Wood confirmed that ‘[i]n certain cases, the practice of international organizations also contributes to the expression, or creation, of rules of customary international law’. That the practice of international organizations can be relevant when identifying customary international law is relatively uncontroversial. The issue that is more debated is the extent to which the practice of international organizations as such may contribute to the development of customary international law. Using examples from the European Union's treaty practice and from the Court of Justice of the European Union, this article argues that international organizations may contribute to such practice, not only by representing the collective will of States, but as autonomous actors in their own right.
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Parlett, Kate, et Amy Sander. « Into the Void : A Counsel Perspective on the Need to Articulate Rules Concerning Disclosure Before the ICJ ». Proceedings of the ASIL Annual Meeting 113 (2019) : 219–22. http://dx.doi.org/10.1017/amp.2019.180.
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Individuals appearing before the International Court of Justice (ICJ or Court) are not subject under international law to any compulsory code of conduct which would guide them in navigating issues of professional ethics. Neither the ICJ Statute nor its Rules impose any qualification requirements on counsel. In practice, legal teams appearing before the Court are comprised of individuals from different legal backgrounds, who tend to be either qualified legal practitioners or academics. Qualified practitioners may be subject to professional codes of conduct from their home jurisdiction, but these can vary considerably across different jurisdictions. Counsel who are academics or are not admitted in any jurisdiction may not be subject to any conduct rules.
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Palmeter, David, et Petros C. Mavroidis. « The WTO Legal System : Sources of Law ». American Journal of International Law 92, no 3 (juillet 1998) : 398–413. http://dx.doi.org/10.2307/2997915.
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Modern discussions of the sources of international law usually begin with a reference to Article 38 (1) of the Statute of the International Court of Justice (ICJ), which provides: The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a.international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;b.international custom as evidence of a general practice accepted as law;c.the general principles of law recognized by civilized nations;d.subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
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Shinkaretskaya, Galina Georgievna. « Obtaining and evaluating evidence at the International Criminal Court ». Право и политика, no 4 (avril 2022) : 43–54. http://dx.doi.org/10.7256/2454-0706.2022.4.37295.
Texte intégralRésumé :
The article refers to the prominent role of the International Criminal Court as an organ of international justice. The author emphasizes the defining role of the Statute of the International Criminal Court as a document in which the legal foundations of activity are formulated and the basic procedural rules that guide the Court in its practice are developed. The importance of the Regulations in the implementation of procedural actions, which are reduced to a detailed and in-depth proof of certain facts submitted to the court, is shown. The methodological basis of the study is a normative, comprehensive, systematic approach to the analysis of the rule of law established by the constituent documents of the International Criminal Court. It is indicated that the constituent documents of the international judicial institution provide, among other things, detailed regulation of the presentation and evaluation of evidence. The author pays special attention to the fact that the provision and evaluation of evidence in the International Criminal Court should be organized in such a way as to provide an opportunity to render a judicial verdict impartially and taking into account all information on the legal grounds under consideration. The article examines certain procedural norms of the Rome Statute and the Rules of the International Criminal Court. The significant role of the Rules of Procedure and Evidence, which are a key tool for the application of the Rome Statute of the International Criminal Court, is shown.
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Pastukhova, L. V., et A. P. Shumilenko. « The Role of the Permanent Court of International Justice (PCIJ) in the Formation of Advisory Competence of International Judicial Bodies ». Rossijskoe pravosudie 5 (25 mai 2021) : 57–66. http://dx.doi.org/10.37399/issn2072-909x.2021.5.57-66.
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The article is dedicated to the analysis of the role of the Permanent Court of International Justice (PCIJ) in the formation of the advisory competence of modern international judicial bodies. Тhe authors emphasize the historical connection named after of the corresponding articles of the Covenant of the League of Nations, the Statute of the Court (PCIJ) and the Rules of Court (PCIJ). We present a list of reasons for rejection of the request for an advisory opinion; the authors analyze to what extent are states bound by the advisory opinions. A special attention is paid to the review of the practice of implementation by the PCIJ of its advisory function and assessment of the impact of advisory opinions on the development of norms of international law.
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Volevodz, A. G. « International criminal justice : from the idea to modern system ». MGIMO Review of International Relations, no 2(5) (28 avril 2009) : 55–67. http://dx.doi.org/10.24833/2071-8160-2009-2-5-55-67.
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Profound concern of international community about serious violations of basic principles and admitted rules leads to wide spread practice of establishing and functioning of international courts of criminal justice. The article touches upon the history of legal basis of international criminal justice, modern models of establishing and functioning of international criminal courts, and signs, that consolidate them into modern system of international criminal justice.
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de Herdt, Sandrine. « Admissibility of Counterclaims : The Practice of UNCLOS Tribunals ». Journal of International Dispute Settlement 13, no 1 (3 février 2022) : 79–97. http://dx.doi.org/10.1093/jnlids/idac002.
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Abstract This article considers the admissibility and procedural aspects relating to the filing of counterclaims in international law, with particular reference to bodies exercising jurisdiction under the United Nations Convention on the Law of the Sea —namely the International Court of Justice, International Tribunal for the Law of the Sea and Arbitral Tribunal instituted under Annex VII to this Convention. Counterclaims in the context of UNCLOS tribunals raise specific questions. For instance, the ambiguity concerning the rules applicable to counterclaims presented in Annex VII proceedings has recently been dealt with by an Annex VII Arbitral Tribunal in The ‘Enrica Lexie’ Incident case. The approach of the Tribunal needs careful consideration. In the M/V “Virginia G” Case, the approach taken by ITLOS questions the manner of interpretation of the ‘direct connection’ requirement in the context of UNCLOS cases. For this purpose, the present study of counterclaims provides a comparative analysis of the rules and practices of the three aforementioned bodies.
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Milisavljevic, Bojan. « Diplomatic protection in international law and the United Nations ». Zbornik Matice srpske za drustvene nauke, no 145 (2013) : 667–81. http://dx.doi.org/10.2298/zmsdn1345667m.
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The paper deals with the issue of the diplomatic protection in international law and its development through the history of the international community. In this sense, the author investigates the practice of states regarding the application of diplomatic protection and the steps taken by the International Law Commission of the United Nations on the codification of this area. In 2004 International Law Commission adopted at first reading a full set of draft articles. In this paper is presented judicial practice, especially of the International Court of Justice, in the field of diplomatic protection in order to evaluate whether the approach of the Court to diplomatic protection has become more human-rights oriented in the last few years. Author presents the development of customary law rules relating to diplomatic protection and its transition into a whole system of rules through the work of the International Law Commission. In this sense, these are the basic stages in the codification of rules on diplomatic protection and the United Nations contribution to the protection of the rights of foreign nationals. This article points the development of universal and regional mechanisms to protect human rights and highlights the impact of those mechanisms on traditional measures of diplomatic protection.
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Svetlicinii, Alexandr. « Enforcement of Foreign Arbitral Awards in the Republic of Moldova – Evolution of the Pro-Arbitration Policy in the Case Law of the Supreme Court of Justice ». Journal of International Arbitration 24, Issue 3 (1 juin 2007) : 249–64. http://dx.doi.org/10.54648/joia2007018.
Texte intégralRésumé :
This article attempts to refute common stereotypes that would characterize the legal environment in Moldova as unstable and unreliable for recognition and enforcement of foreign arbitral awards in national courts. Under analysis is the emerging judicial practice of Moldova’s highest court, the Supreme Court of Justice. The author provides a brief introduction to the establishment of continuous support for arbitration in national legislation, international agreements and national judicial practice. Judicial precedents are related to various aspects of recognition and enforcement of foreign arbitral awards in Moldova: procedures for setting aside; application of the New York Convention; treatment of arbitration clauses by national judges; procedural aspects of commercial arbitration; arbitration under bilateral investment treaties; and other aspects. Several important judgments are discussed in detail, emphasizing the procedural aspects of the enforcement and application by the national courts of international treaties, foreign substantive laws and rules of the administering arbitral institutions. The conclusion drawn on the results of the case law analysis demonstrates that despite common stereotypes supported by certain investment reports and legislation studies, Moldovan courts have always shown general support towards international commercial arbitration as a preferred method of alternative dispute resolution.
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Poloni, Flore, et Carine Dupeyron. « Procédure de liquidation dune partie, arbitrage et droit daccès à la justice : limpossible équation ? » ASA Bulletin 30, Issue 2 (1 juin 2012) : 467–79. http://dx.doi.org/10.54648/asab2012041.
Texte intégralRésumé :
The impossible relationship between arbitration and the insolvent party? The ICC Arbitration Rules provide that each party should contribute in equal shares to the advance on costs of the arbitration. However when a party has submitted counterclaims and refuses to comply with such payment, the other party may request the Court to set separate advances on costs. If the defaulting party still does not comply with the advance on costs within a time-limit set by the Secretariat, the rules provide that its counterclaims may be considered withdrawn. However, such withdrawal does not prevent the defaulting party from reintroducing the same claims at a later date in another proceeding. The Paris Court of Appeal was recently confronted with the issue of the validity of an arbitral award rendered in a case where a company which was being liquidated could not pay the advance on cost and accordingly had its counterclaims withdrawn from the proceedings. On November 17, 2011, the Paris Court judged that, despite the conformity of the withdrawal decision taken by International court of Arbitration with its Rules, the defaulting party had been deprived of its counterclaim in practice. Indeed, the possibility of reintroducing the claim was only theoretical while the liquidation process were ongoing and the withdrawal in practice amounted to a denial of justice and resulted into breaching the equality between the parties. As a consequence, the award was considered in breach of the adversarial principle and international public policy and was annulled on the grounds of former articles 1502 (4) and (5) and 1504 of the French Code of Civil procedure. If this decision may be considered fair to the insolvent party acting in good faith, it questions essential principles of arbitration as a system of private justice. Moreover, as the strict application of the ICC Arbitration Rules is hereby criticized by the Paris Court of Appeals, this decision creates additional doubts as to the scope of the duties belonging to the arbitral tribunal for the award to comply with the requirements of due process.
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Hamilton, Tomas, et Göran Sluiter. « Principles of Reparations at the International Criminal Court : Assessing Alternative Approaches ». Max Planck Yearbook of United Nations Law Online 25, no 1 (23 décembre 2022) : 272–317. http://dx.doi.org/10.1163/18757413_02501018.
Texte intégralRésumé :
While the Rome Statute of the International Criminal Court requires the judges of the Court to establish principles of reparations, the existing case law is developing on shaky doctrinal foundations, failing to take into account legal sources, particularly from national civil torts systems, that offer vital law and practice that could inform the Court’s reparations orders. This article evaluates the legal basis of the existing reparations case law of the Court, arguing that undue prominence has been given to soft law human rights instruments while a lack of reference to the framework methodology in Article 21 of the Rome Statute has left the reparations principles weakly articulated. There are alternatives that the Court could consider in future, notably an increased role for and coordination with national justice systems, the potential for drawing on reparation rules from national torts systems, and the relevance of the lex loci damni principle. The article assesses these alternatives and proposes routes forward for the Court’s reparations practice based on the Rome Statute’s legal mandate.
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Nováčková, Daniela, et Tomáš Peráček. « The Common European Investment Policy and Its Perspectives in the Context of the Achmea Case Law ». TalTech Journal of European Studies 11, no 1 (1 mai 2021) : 153–69. http://dx.doi.org/10.2478/bjes-2021-0010.
Texte intégralRésumé :
Abstract Current developments in the field of international investment relations are influenced by the ruling of the Court of Justice in the Achmea case, when de facto European law became superior to international law. The verdict of the Court of Justice changes the usual legal procedures and customs in the field of bilateral investment agreements. However, the impact of this court decision is an almost unexplored area due to the lack of interest of legal theorists, and it is relatively difficult to find answers to the ambiguities and problems that have arisen. The scientific study analyses the current process of introducing new rules in the field of investment policy within the European Union, which means the end of bilateral investment agreements within the European Union. It also examines the European Union’s activities in the field of foreign direct investment and the development of a stable European investment policy. Determining the goal of the scientific study is based directly on current needs and emerging practical problems in practice. Their correct understanding and application has a fundamental impact on the possibilities of rules in the field of investment policy. Due to the nature of the researched topic, we applied selected qualitative methods suitable for recognising the law. However, we also analysed scientific literature, case-law and the analogy of law, thus providing qualified answers to the application pitfalls of legal practice.
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Torres, Felix E. « Revisiting the Chorzów Factory Standard of Reparation – Its Relevance in Contemporary International Law and Practice ». Nordic Journal of International Law 90, no 2 (9 avril 2021) : 190–227. http://dx.doi.org/10.1163/15718107-bja10023.
Texte intégralRésumé :
Abstract The Chorzów Factory standard of reparation has been consolidated in the mind-set of international actors since the International Law Commission’s Articles on State Responsibility were adopted in 2001. This article analyses to what extent the recent case law of the International Court of Justice and other international practice concerning injury to aliens and property rights, especially expropriations, reflect the Chorzów Factory standard. It does so by considering whether ‘full reparation’ is the central issue in international disputes that involve state responsibility, if restitutio in integrum prevails over other forms of redress, and if the amount of compensation is established in light of the principle of ‘full reparation’. The interaction between the secondary rules of state responsibility and the primary rules of expropriation will be considered in investor-state disputes. In addressing these questions, the role that adjudicating bodies understand they play in international law and the interests pursued by stakeholders – states and private investors – are examined.
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Kayuni, Steven William. « Quis Custodiet Ipsos Custodes (Who is Guarding the Guardians) ? – Decision Processes in the icc’s Offences Against the Administration of Justice ». Law & ; Practice of International Courts and Tribunals 15, no 2 (22 septembre 2016) : 345–84. http://dx.doi.org/10.1163/15718034-12341326.
Texte intégralRésumé :
This article examines the legal framework and practice regarding offences against the administration of justice within the Rome Statute of the International Criminal Court. As the icc adds more investigations and prosecutions, offences against the administration of justice in the form of witness interference and tampering, false testimony presentations and misconduct by or against officials of the Court are becoming common ground or prevalent. The mechanism provided for in Articles 70 and 71 of the Rome Statute when read with the Rules of Procedure and Evidence (rpe) grants powers to investigate and prosecute such offences. Decision-making, legal interpretation and policy formulation have become a challenge. In tackling this, this article analyses the legislative formulation of these offences; it then focuses on the policy evolution and development of the practice of predecessor tribunals. In conclusion, the article suggests opportunities for the icc’s legal interpretation and policy alternatives regarding future trends in offences against the administration of justice.
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Sender, Omri, et Sir Michael Wood. « Between ‘Time Immemorial’ and ‘Instant Custom’ : The Time Element in Customary International Law ». Grotiana 42, no 2 (18 novembre 2021) : 229–51. http://dx.doi.org/10.1163/18760759-42020007.
Texte intégralRésumé :
Abstract Article 38.1(b) of the Statute of the International Court of Justice, which refers to customary international law as ‘a general practice accepted as law’, makes no mention of duration. Yet the ‘time element’, as the Court itself called it, has not infrequently been relevant—if not central—to determining whether a rule of customary international law has come into being. The present article seeks to describe how far the passage of time is necessary for the creation of rules of customary international law, and the possible significance of time to the customary process more generally. While noting that no particular duration is required for the formation of customary international law, it suggests that some time must always elapse, and that assertions of a rapid development in customary international law are to be treated with a degree of caution. Light is thrown on particular ways in which time may indeed be of significance for the formation and identification of a rules of customary international law, and on further ways in which time (and timing) may impact the life cycle of such rules, including their possible change and demise.
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Lanovoy, Vladyslav. « The authority of inter-state arbitral awards in the case law of the International Court of Justice ». Leiden Journal of International Law 32, no 3 (27 mai 2019) : 561–84. http://dx.doi.org/10.1017/s0922156519000256.
Texte intégralRésumé :
AbstractArticle 38(1)(d) of the Statute of the International Court of Justice attributes limited legal authority to judicial and arbitral decisions. They are not formal sources of law and are described as only subsidiary means for the determination of rules of law. However, the continuing validity of this characterization is challenged not only by the Court’s practice of referring to its own jurisprudence, a phenomenon that has been empirically and theoretically analysed elsewhere, but also its relatively new practice of relying on external case law. This article seeks to draw attention to one aspect of this new practice, namely the marked increase in the Court’s citation of inter-state arbitral awards since the 1990s. It is argued that the Court refers to inter-state arbitral awards in its decisions for three principal reasons – (i) to determine the existence of a given rule, (ii) to supplement its legal reasoning or its own case law on a particular issue, and (iii) to distinguish an arbitral award from the case before it. More ambitiously, the article argues that the way the Court relies on inter-state arbitral awards shows that the Court attributes legal authority to these awards that goes beyond that of a subsidiary means for determining a given rule of law, bringing it closer to what might be qualified as persuasive but non-binding precedent.
34
Treves, Tullio. « The Procedure Before the International Tribunal for the Law of the Sea ; The Rules of the Tribunal and Related Documents ». Leiden Journal of International Law 11, no 3 (septembre 1998) : 565–94. http://dx.doi.org/10.1017/s0922156598000405.
Texte intégralRésumé :
The Rules of the International Tribunal for the Law of the Sea, adopted in October 1997 (together with the Resolution on Internal Judicial Practice and the Guidelines Concerning the Preparation and Presentation of Cases Before the Tribunal) follows the model of the Rules of the International Court of Justice with rather relevant differences. Some of these differences depend on the need of more expeditious and less expensive proceedings: in particular, the provisions introducing time limits and those in the Resolution on Internal Judicial Practice which eliminate in most cases the requirement of Notes by each judge. Others depend on the specific characteristics of the jurisdiction of the Tribunal. These include the provisions on intervention, on preliminary objections and proceedings, on provisional measures, on prompt release of vessels and crews, and on activities in the international seabed Area. In this category can also be included the provisions on the participation in proceedings by international organizations and natural and juridical persons.
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Rincón, Alfonso. « EC Competition and Internal Market Law : On the Existence of a Sporting Exemption and its Withdrawal ». Journal of Contemporary European Research 3, no 3 (30 novembre 2007) : 224–37. http://dx.doi.org/10.30950/jcer.v3i3.51.
Texte intégralRésumé :
Some authors argue that there is no such a thing as a sporting exemption under EC law. However, an in-depth analysis of the case law reveals that thirty years ago the European Court of Justice (“ECJ”, or “Court”) created an exemption specifically relating to sport. The judgment of the ECJ in Walrave established the basis for this exemption, which was confirmed and extended in Donà. Since then the exemption has been subject to the vicissitudes of legal interpretation. First of all, the Court endeavoured to contain its use, although the consequence of this was the expansion of the exemption from internal market to competition rules. This led to uncertainty and inaccuracy in the assessment of sporting practices. The ECJ reacted to the atmosphere of confusion created by the interpretation of the Walrave case and withdrew the exemption in Meca Medina. The correct test for assessing whether a sporting practice is contrary to EC law is now the proportionality test; however, further clarification is required.
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Hensler, Deborah R. « Justice for the Masses ? Aggregate Litigation & ; Its Alternatives ». Daedalus 143, no 3 (juillet 2014) : 73–82. http://dx.doi.org/10.1162/daed_a_00289.
Texte intégralRésumé :
Traditionally, disputes over injury compensation that were brought to court involved one or a few plaintiffs and defendants and were processed individually. The risk and expense of such litigation meant that most victims of legally cognizable injuries never came through the courthouse doors. The modern global economy, however, has vastly increased the potential for mass harms and losses, and modern mass media have created felicitous circumstances for mass claiming. Aggregated mass litigation blasts open the courthouse doors for individuals who might otherwise find them closed. Aggregation benefits some but disadvantages others. Class action rules attempt to mitigate these conflicts, but such procedures do not apply to aggregate non-class litigation. It is time for courts to adopt rules and practices that recognize the realities of such litigation.
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Kaluzhna, Oksana. « EVIDENCE IN THE INTERNATIONAL CRIMINAL COURT – THE ROLE OF FORENSIC EXPERTS : THE UKRAINIAN CONTEXT ». Access to Justice in Eastern Europe 5, no 4-2 (13 décembre 2022) : 52–65. http://dx.doi.org/10.33327/ajee-18-5.4-a000435.
Texte intégralRésumé :
Background: Ukraine faced unprecedented challenges for to the national justice system and the possibility of using international justice to bring the Russian Federation military, officers,and officials to justice after the full-scale invasion of Ukraine by the Russian Federation on 24 February 24, 2022. Since In March 2022, the ICC Prosecutor has started an investigation of into war crimes in Ukraine. In addition, joint investigative groups are carrying out activities. Cooperation between pre-trial investigation bodies of Ukraine through the Prosecutor General of Ukraine with and the International Criminal Court has been established. Therefore, the research of into possible problems in the criminal procedure of prosecution for war crimes is one of the priority areas for Ukrainian law enforcement practice and legal science. Methods: The present article is devoted to the peculiarities of the ICC international criminal justice, in particular the ICC jurisdiction in the territory of Ukraine (Ukraine has not ratified the ІСС Rome Statute), the ICC model of administration of justice, the rules of admissibility of evidence, the status of experts, and the features of expert involvement during ICC trials. Results and Conclusions: The authors found that several provisions of the joint Order of the Ministry of Internal Affairs of Ukraine, the Ministry of Health of Ukraine, and the Office of the Prosecutor General ‘On approval of the Procedure for interaction between bodies and units of the National Police of Ukraine, health care institutions and the bodies of the Prosecutor’s Office of Ukraine in establishing the fact of the death of a person during martial law on the territory of Ukraine’ dated 9 March 2022 do not correspond to the Code of Criminal Procedure of Ukraine. The authors emphasise that the erroneous provisions of this bylaw could serve as a legal basis for avoiding criminal responsibility for war crimes.
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Kwiatkowska, Barbara. « The Saint Vincent and the Grenadines v. Guinea M/V Saiga Cases ». Leiden Journal of International Law 11, no 3 (septembre 1998) : 547–64. http://dx.doi.org/10.1017/s0922156598000399.
Texte intégralRésumé :
The article surveys the Saint Vincent and the Grenadines v. Guinea M/V Saiga cases which inaugurated jurisprudence of the 21 Member International Tribunal for the Law of the Sea (ITLOS) in Hamburg, Germany, with delivery of two important decisions on prompt release of the vessel and its crew (1997, Case No. 1) and on provisional measures of protection (1998, Case No. 2). The decisions provided precedential instances of application by the Tribunal of Articles 292 and 290 of the 1982 UN Convention on the Law of the Sea respectively, and of the relevant provisions of the ITLOS Rules. The prescription of provisional measures of protection formed the incidental proceedings of the pending M/V Saiga (Merits) case which is to be settled by ITLOS in mid-1999 (Case No. 2) and is to be the subject of a separate article. In view of the ITLOS Statute and the Rules being closely modelled in the Statute and the Rules of the International Court of Justice (ICJ), careful attention is given to comparison of the inaugural practice of ITLOS with the longstanding practice of the ICJ, and preservation of judicial consistency by ITLOS is particularly commended. A history of the M/V Saiga dispute, intertwined with domestic proceedings before Guinean courts, is for the reader's convenience outlined in a Chronological Table annexed to this article.
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Mansour Fallah, Sara. « The Admissibility of Unlawfully Obtained Evidence before International Courts and Tribunals ». Law & ; Practice of International Courts and Tribunals 19, no 2 (26 août 2020) : 147–76. http://dx.doi.org/10.1163/15718034-12341420.
Texte intégralRésumé :
Abstract 70 years ago, the International Court of Justice decided its first and potentially most important case involving unlawfully obtained evidence. Despite clearly rejecting ‘discovery by intervention’, the judgment left many guessing as to the consequences for evidence obtained through such violations. As parties to international disputes have certainly not become less inclined to obtain evidence by unlawful means, the question arises: Was this old confusion ever unraveled? This article discusses whether today, there are international rules or principles governing the admissibility of unlawfully acquired evidence and applies a two-fold approach. First, it examines traditional sources of international law, including international jurisprudence, and second, it scrutinizes the frequently drawn analogy to national jurisdictions by surveying their treatment of illegally obtained evidence. Although a generally binding “inadmissibility rule” does not yet exist, practice demonstrates a tendency to consider such evidence in light of general principles of law. This article proposes handling unlawfully acquired evidence by applying a defined, yet flexible balancing test using criteria commonly applied in international and national practice.
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Fredriksen, Halvard Haukeland. « One Market, Two Courts : Legal Pluralism vs. Homogeneity in the European Economic Area ». Nordic Journal of International Law 79, no 4 (2010) : 481–99. http://dx.doi.org/10.1163/157181010x531304.
Texte intégralRésumé :
AbstractIn this article the apparent incompatibility between the judicial architecture of the European Economic Area (EEA) and the overall goal of uniform interpretation and application of the common rules in all EEA States is examined. In practice, homogeneity appears achievable only if the European Free Trade Association (EFTA) Court succumbs to the European Court of Justice (ECJ), granting the latter the final word on the interpretation of the EEA Agreement. It is argued that, as far as substantive EEA law is concerned, this is exactly what the EFTA Court has done over the past 17 years of the EEA's existence. The result is a well-functioning EEA Agreement. The price to pay for the EFTA States is the revelation of the perhaps inconvenient truth that the de facto supreme authority on the interpretation of EEA law rests with the ECJ.
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Peers, Steve. « Mission accomplished ? EU Justice and Home Affairs law after the Treaty of Lisbon ». Common Market Law Review 48, Issue 3 (1 juin 2011) : 661–93. http://dx.doi.org/10.54648/cola2011029.
Texte intégralRésumé :
The legal framework regarding EU Justice and Home Affairs Law was changed fundamentally by the Treaty of Lisbon, so that the usual rules on decision-making, jurisdiction of the Court of Justice, legal instruments and legal effect are now largely applied to this area of law. The various issues falling within the scope of JHA law are now set out in Title V of Part Three of the Treaty on the Functioning of the European Union, which is divided into five chapters, beginning with general provisions, followed by chapters on immigration and asylum, civil law, criminal law and policing law. This paper examines the application of the new rules in practice, in particular the impact of extending QMV; the extended legislative powers of the European Parliament; the role of the Commission as compared to the Member States; and the role of national parliaments. It concludes that this area of EU law is now fully part of the mainstream, with the exception of the special opt-outs for three Member States. However, it now follows that some of the general problems of EU law apply to JHA legislation, and there are emergent problems ensuring that JHA legislation is applied in practice by Member States, in particular from the perspective of the ECHR.
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Beretta, Laura Carola, et Agnieszka Smiatacz. « The Court of Justice of the European Union Judgment in the Hamamatsu Case : Defending EU Customs Valuation Law from the Transfer Pricing Folly in Customs Matters ». Global Trade and Customs Journal 13, Issue 5 (1 mai 2018) : 187–90. http://dx.doi.org/10.54648/gtcj2018021.
Texte intégralRésumé :
In the last few years there has been a tendency by most of the companies in the European Union and elsewhere to indiscernibly rely on the so-called transfer pricing agreements together with related to them studies, which are tax law matters, also for the determination of the customs value for customs valuation purposes. This practice seems to be highly questionable taking into account the different natures and objectives of tax and customs law. With the Hamamatsu judgment, the Court of Justice of the European Union restores the order in such matter by reaffirming the primacy of pure customs valuation rules and providing for a clear refusal for the automatic application of the transfer pricing agreements to the customs valuation of goods. This judgment is fully in line with previous case law on the nature of the customs valuation rules and objectives. As a result, the Hamamatsu judgment created justified concerns to those companies that have unjustifiably relied on transfer pricing methodologies also to adjust a posteriori the customs value of goods. However, the Court of Justice has done nothing more than reaffirm the obvious. Following the ruling, companies will have to set up a proper customs valuation assessment system, which are separate from the transfer pricing one. Nevertheless, this does not mean that transfer pricing studies are not to be taken into account as ‘context’ for such customs valuation purposes.
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Voytovich, Elena. « Right to a name : cross-border family-legal aspects of implementation ». Meždunarodnoe pravosudie 11, no 1 (2021) : 43–56. http://dx.doi.org/10.21128/2226-2059-2021-1-43-56.
Texte intégralRésumé :
The increase of cross-border contacts of individuals has shifted the emphasis in modern studies of the right to a name in Civil and Family law to Human rights and Private International Law. The article examines the problems of cross-border implementation of the right of an individual to a name, which are a consequence of state control over the circulation of names, as well as conflicts of national laws. The author offers to get acquainted with the practice of the European Court of Human Rights and the Court of the European Union, which serves as an illustration of the peculiarities of the implementation of the right to a surname in the context of convergence of legal systems. The proposed court decisions demonstrate new approaches to protecting the right of an individual to a surname and open the way to the formation of an internally consistent, coherent system of rules governing the right to a name. The article analyzes the international private legal aspects of the implementation of the right to a surname; special attention is paid to the conflicting principles of determining the law to be applied. The author concludes that domestic practice of assigning surnames should seek to achieve legal certainty. Such practice should not interfere with the exercise of the right to respect for private and family life, freedom of movement and choice of place of residence, or discriminate. Taking into account the results of international justice, national rules on names, conflict of laws norms require revision and updating. The consistent application of lex personalis in determining the applicable law can lead to situations in which the identity of the individual will be in doubt. The solution to this problem is seen not only in improving conflict of laws approaches, but also in the mechanism of recognition of foreign administrative acts. The implementation of this proposal will eliminate lame relationships, ensure legal certainty and stability of the person’s status. The author also proposes to distinguish between conflict of laws rules governing family status and conflict of laws rules governing civil status of an individual.
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Vatras, V. A. « International and national sources of inheritance law : on the question of definition of content ». Uzhhorod National University Herald. Series : Law, no 65 (25 octobre 2021) : 97–101. http://dx.doi.org/10.24144/2307-3322.2021.65.17.
Texte intégralRésumé :
In the scientific article the author conducted a scientific study of the concept and content of international and national sources of inheritance law. Based on the study, the author concluded that the system of sources of inheritance law of Ukraine can be represented as follows: I. The basis of inheritance law (Article 41 of the Constitution of Ukraine). ІІ. International treaties and national law governing inheritance relations complicated by a foreign element: the Law of Ukraine “On Private International Law”, the Convention on the Conflict of Laws Concerning the Form of Testamentary Dispositions, the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters, bilateral agreements on legal assistance and legal relations in civil and family matters governing the issue of inheritance, consular conventions regarding the settlement of inheritance issues. III. Acts of civil law that regulate inheritance: Civil Code of Ukraine, including Book Six, certain rules contained in other laws of Ukraine and equivalent regulations on inheritance issues (including Family, Tax, Land, Civil procedural codes, laws of Ukraine “On ensuring the rights and freedoms of citizens and the legal regime in the temporarily occupied territory of Ukraine”, “On notaries”, “On copyright and related rights”, etc.), resolutions of the Cabinet of Ministers of Ukraine and legal acts of the Ministry of Justice of Ukraine on issues related to inheritance. IV. Legal custom or contract, including inheritance agreements, agreements of heirs to determine the order and size of inheritance shares. V. Judicial practice on inheritance issues: resolutions of the Plenum of the Supreme Court of Ukraine “On judicial practice in cases of inheritance”, letter of the Supreme Specialized Court of Ukraine on civil and criminal cases “On judicial practice of civil cases of inheritance”. VI. Decisions of the Constitutional Court of Ukraine adopted on the official interpretation of the rules of inheritance law, including in the case of the right to a mandatory share in the inheritance of adult incapacitated children of the testator.
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Rossi-Maccanico, Pierpaolo. « Fiscal Aid Review and Cross-Border Tax Distortions ». Intertax 40, Issue 2 (1 février 2012) : 92–100. http://dx.doi.org/10.54648/taxi2012010.
Texte intégralRésumé :
International taxation was never the focus of the state aid prohibition foreseen by Article 107(1) TFEU. Indeed, the European judicature has made it clear that the application of state aid rules to measures relating to business taxation was essentially aimed at intra-state rather inter-state tax preferences. However, this does not preclude certain cross-border distortions of competition deriving from direct business tax measures to fall under the scrutiny of state aid rules. Under its effect-based doctrine, the European judicature has consistently held that the notion of state aid includes tax preferences having the effect of indirectly favouring certain undertakings by favouring certain productions or arrangements, except where the preference is justified from the nature and general scheme of the system. Moreover, the Commission practice first and the Court of Justice later have confirmed that the notion of selective aid includes certain tax preferences being selective irrespective of whether these are internationally harmful or not. Starting with his 1998 Notice on the application of state aid rules to direct tax measures, the Commission has been active in policing the tax regimes relating to the 1997 Code of Conduct on business taxation to tackle international tax competition. Against this background, the article provides a reasoned review of the application of state aid rules to international tax preferences and of the selectivity criterion. There is no reason not to carry out the analysis under the same criteria than the ones developed by the Court in reviewing tax discriminations or restrictions hindering the exercise of fundamental freedoms in the internal market, save where competition between undertakings is not affected. This parallel shall not, however, bring prejudice to the different nature and scope of state aid review. In examining the compatibility of fiscal aids with the internal market, the Commission enjoys a broader discretion, provided that it never produce results that limit or restrict the application of specific provisions of the TFEU such as the fundamental freedoms.
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Greiner, D. James. « The New Legal Empiricism & ; Its Application to Access-to-Justice Inquiries ». Daedalus 148, no 1 (janvier 2019) : 64–74. http://dx.doi.org/10.1162/daed_a_00536.
Texte intégralRésumé :
The United States legal profession routinely deals with evidence in and out of courtrooms, but the profession is not evidence-based in a scientific sense. Lawyers, judges, and court administrators make decisions determining the lives of individuals and families by relying on gut intuition and instinct, not on rigorous evidence. Achieving access to justice requires employing a new legal empiricism. It starts with sharply defined research questions that are truly empirical. Disinterested investigators deploy established techniques chosen to fit the nature of those research questions, following established rules of research ethics and research integrity. New legal empiricists will follow the evidence where it leads, even when that is to unpopular conclusions challenging conventional legal thinking and practice.
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Christensen, Mikkel Jarle. « Preaching, Practicing and Publishing International Criminal Justice : Academic Expertise and the Development of an International Field of Law ». International Criminal Law Review 17, no 2 (27 février 2017) : 239–58. http://dx.doi.org/10.1163/15718123-01702006.
Texte intégralRésumé :
The article investigates the role of scholarly expertise in and around the international criminal courts. Building on the sociology of Pierre Bourdieu, the article analyses the influence of different forms of scholarship by situating them in the wider ‘field’ of international criminal law. Structured by opposing poles of social worth organized around different perceptions of what is considered valuable knowledge, scholarship on international criminal law took competing forms. A dominant form of scholarship is oriented towards societal impact and caters to legal practice, while more critical perspectives adhere to norms of disinterest and autonomy embedded in academia. Formatted by the larger field of practice in which they exist and by their relative proximity to the opposing poles of societal and academic power and prestige, these perspectives structure the professional rules that govern the field and thus affect the development of its law by defining what is perceived as relevant knowledge.
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Johnston, Angus, et Hannes Unberath. « The double-headed approach of the ECJ concerning consumer protection ». Common Market Law Review 44, Issue 5 (1 octobre 2007) : 1237–84. http://dx.doi.org/10.54648/cola2007113.
Texte intégralRésumé :
This article analyses the development of EC consumer law by looking in detail at the approach taken by the European Court of Justice in its case law in this field, and the impact that this had had upon national law in certain areas. It contends that the Court has taken contrasting approaches to the desirable extent of consumer protection laws, depending upon whether that protection derives from national laws which operate as derogations from the EC’s Treaty rules on the internal market or from positive legislative activity at EC level. In the former area, the Court has been unwilling to accept many such national consumer protection measures, regularly finding them not to be necessary for achieving the relevant goal or to be disproportionate to that end. In the latter area, however, the Court has consistently given an expansive interpretation to the provisions in the directives on consumer protection. The reasons behind this difference in approach are discussed and it is suggested that the Court’s support for more interventionist consumer protection measures when interpreting the scope of EC legislation sometimes fails in fact to secure the protection which the Court seems to require, or only does so at the cost of far-reaching effects upon other areas of law and practice in the relevant sectors. In conclusion, it is suggested that these differences relate to the Court’s perception of its function in interpreting and applying the primary rules of the EC Treaty, on the one hand, and in promoting the objectives of secondary law adopted under that Treaty, on the other. Two fundamentally conflicting policies are the result: free trade is the priority of primary legislation while interventionist consumer protection lies at the heart of the case law on secondary legislation. Yet the Court’s holdings merely point to a deeper-level tension in the fabric of the Community’s philosophy of market regulation.
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Noneva-Zlatkova, Yordanka. « European Court of Justice Jurisprudence in the Field of Avoidance Actions with International Elements for Filling the Insolvency Estate ». International conference KNOWLEDGE-BASED ORGANIZATION 26, no 2 (1 juin 2020) : 205–10. http://dx.doi.org/10.2478/kbo-2020-0077.
Texte intégralRésumé :
AbstractWith the development of the internal market, the need to establish rules ensuring the protection of creditors in insolvency proceedings with a cross-border effect is increasing. Mechanisms at national level are difficult to provide the desired protection for foreign creditors. Since 26.06.2017 EU has a new Regulation 848/2015 which repeals the current Regulation 1346/2000. Despite the radical changes, it is attempting to implement this legislative act, the main objective of insolvency proceedings remains unchanged, namely, to achieve fair satisfaction of creditors. One of the mechanisms for the realisation of this objective are avoidance actions with international element for filling the insolvency estate. In view of the specifics of the procedure, the standard civil law mechanisms such as the Actio Pauliana are not impossible but are extremely inadequate and difficult to prove. In the practice of the Member States, many issues arise concerning the determination of jurisdiction and applicable law, creation of preconditions for the abuse in searching the most favourable legal system (forum shopping), there are differences in the so-called ‘suspicious periods’ and transactions concluded with affiliates. On this basis a fundamental jurisprudence of the CJEU has been enacted, the achievement of which will be the subject of this paper.
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Mehta, Ravi S. « The Continental Shelf : No longer a terra incognita to the EU ». Common Market Law Review 49, Issue 4 (1 août 2012) : 1395–422. http://dx.doi.org/10.54648/cola2012068.
Texte intégralRésumé :
The current state of EU law reveals an unclear and incoherent approach to the question of its applicability to the Continental Shelf of Member States. The ambiguity in rules of public international law have led to divergences in Commission practice and EU secondary legislation. However, the case law of the Court of Justice of the European Union has tentatively led the way towards a functional approach to the territorial scope of the EU Treaties, attached to the sovereignty or jurisdiction of Member States. This position, hinted at in the recent Grand Chamber judgment in Case C-347/10 Salemink but not firmly clarified, is both theoretically and practically justifiable and should be unequivocally embraced by relevant actors in this area. Such an approach would be an important step towards tracing the precise contours of the geographic areas to which EU law applies.