Littérature scientifique sur le sujet « Judge-made law – France »

Doubts about the traditional, positivistic interpretation of Montesquieu's ‘bouche de la loi’-text – Reading Montesquieu in his historical context – England and France: judge made law and parlementaire ideology – Natural law context – Lex animata, lex loquens: King versus judge – The Ciceronian and English background of the ‘bouche de la loi’ – The Fronde and les Mazarinades – George Buchanan, Sir Edward Coke and Calvin's Case

In 2017 the International Court of Justice (ICJ or Court) made only procedural decisions, one on preliminary objections, one on counterclaims, and two on provisional measures. Three other new applications were made to the Court, all linked to earlier cases: Malaysia applied for the revision, and interpretation, of the judgment in the Pedra Branca/Pulau Batu Puteh case; and Costa Rica brought a case against Nicaragua concerning their land boundary in the area of Los Portillos, the latest in a long line of cases between the two states. Judges Ronny Abraham (France), Dalveer Bhandari (India), Antonio Cançado Trindade (Brazil), and Abdulqawi Yusuf (Somalia) were reelected to the Court, and one new judge, Nawaf Salam (Lebanon) was elected. The UK failed to secure the reelection of its judge, Christopher Greenwood. For the first time since the establishment of the ICJ, the UK will have no judge on the Court. This failure may be taken as an indication of its declining influence in international relations, arguably attributable in part to Brexit, and it marks the end of the convention that each permanent member of the Security Council will have a judge of its nationality on the Court. Nor was the UK able to prevent a request by the UN General Assembly (passed by ninety-four in favor to fifteen against, with sixty-five abstentions) for an Advisory Opinion on the legal consequences of the separation of the Chagos Archipelago from Mauritius in 1965—a sensitive issue for the UK, and one that has already been the subject of much litigation.

Objective ”“ The article offers an original contribution to the debate about the application of substantive law and the eligible jurisdiction that should judge the liabilities disputes between the so-called Internet giants' enterprises and the users. Methodology/approach/design ”“ The article brings a bibliographical and case law review of both France and the European Union about International Private Law applicable to the liability violations made by the so-called Internet giants' enterprises. Findings ”“ The article shows a legal theory central problem, which is the best way to define both the substantive law and the jurisdiction that should judge transfrontier liabilities in legal cases. The best solution would be to apply the so-called focus theory, i.e. the application of the substantive law and the jurisdiction following the local where the damage happens. Notwithstanding, this general application of the focus theory could impose limits on the future substantive reparation that the courts may grant to the victims. Besides, such general application collides with the traditional forum selection clauses that the giant Internet firms usually use to demand that the judgment of liability lawsuits solely by the United States courts. Practical implications ”“ The article is an important introduction to the choice of substantive law and jurisdiction applicable to the liability lawsuits filed against the giant Internet enterprises. This debate has a clear practical application that will become more important as the European Union General Data Protection Regulation (GDPR) enters in force and prescribes its transfrontier application. Originality/value ”“ The article enlightens a very important legal debate about the European Union Law that has some regulations (Rome I, Rome II, and Brussels I) to prescribe what substantive law and which jurisdiction may be of use to judge civil liability violations. This legal debate will grow in importance since the GDPR will give motives to a whole lot of new lawsuits about data protection.

The concept of public policy in International Arbitration is still extremely contentious, controversial, and complicated in modern times. Although legislation related to arbitration and practise have attempted to harmonise public policy so that parties may benefit from a globally recognised idea, judicial courts have made this effort almost difficult by giving a very loose & broad definition in the name of public policy. Moreover, the New York Convention gives little direction to national courts on how to interpret the public policy claim. In the name of local contract laws and fundamental principles of a nation, judge keeps hampering the enforcement of foreign award. Internal Law Association attempted to resolve this contention but couldn't come up with a definite definition which limits the policy in a closed structure. Despite the ambiguity of the issue, national courts in most developed arbitral countries interpret public policy narrowly. Because industrialised countries' courts typically see arbitral awards as a separate aspect of public policy; they are pro-enforcement. In this article we will comprehensively elaborate this attitude, legislation and case law study of developed nations like USA, UK and France.

In this article I analyse the verdict of the European Court of Human Rights in the Case of Lambert and Others v. France, delivered on 5 June 2015, affirming the Conseil d’État’s decision holding that the withdrawal of artificial nutrition and hydration from Vincent Lambert, a French national lying in tetraplegia and persistent vegetative state, was consistent with French domestic law and the European Convention for the Protection of Human Rights and Fundamental Freedoms. In order to make a comparative evaluation I give an account of judicial decisions across the world and find that the European Court’s decision is an affirmative pronouncement, in the prevailing milieu of judicial heterogeneity, as it recognizes a person’s right to die with dignity in the face of conflicting claims and arguments, by giving supremacy to a person’s autonomy and right of self-determination over the deep-rooted religious beliefs and undue paternalistic postures. I conclude that right to die with dignity is a profound area where judge-made law is not the answer. The situation calls for greater consensus and uniformity by evolving suitable legislative strategies.

The administrative practices of officials who process the admission of immigrants show severe variations in the ways in which migration policy is enforced on the ground. For the author, inequality of treatment lies in the very hierarchy of tasks and services of what he dubs, following Pierre Bourdieu, the immigration "field". According to the author, the governments’ securitizing priorities favour the sort of suspicion towards foreigners that the media then reproduces, thus authorizing so-called street-level bureaucrats to act with great leeway with regard to immigrants. Under pressure, governments implement what the author calls a "trompe-l’oeil policy" that explores the ambivalence between international and domestic law: while the state enforces repressive laws that apparently comply with fundamental human rights, it leaves to low-ranking civil servants enough discretion to make those rights ineffective. This point is the author’s central contention. The arbitrariness of these officials is neither contingent nor accidental: it actually constitutes a purposive "front-line policy" to enlarge the discretionary power of street-level bureaucrats in charge of regulating admissions. Unequal treatment comes in three flavours in this context. First, officials are asked to ensure that each right granted to a foreigner will not threaten the national order, which means the economic, social and political order. They are therefore in a position to judge the suitability of each application in view of their own arbitrary interpretation of what such "threats" consist of. The question of discretionary power is in this way intimately linked to the problem of equality before the law. Second, the scarcity of material and human resources allocated to services in charge of welcoming migrants starkly contrasts with the expenditure incurred to deport foreigners. Inequality also arises from how agents perceive users and the leeway they have to implement the law. Third, inequality is related to foreigners’ abilities and means to challenge discretionary power, especially through the legal tools they use or through legal intermediaries. The author thus concludes that such "front-line policy" has increasingly been used as a weapon against migrants, especially since the early 2000s, when immigration and detention policies were generalized in France. More broadly, in Europe as well as in United States, immigration reforms have made greater use of detention and focused on enforcement rather than on hosting programs and services for asylum seekers. But they have also strengthened the role of legal intermediaries. Hence the need to investigate how discretionary power is challenged as it sheds light on the power relations between states and migrants. Keywords: foreigners, discretion, sociology, participant observation, front-line policy, illegalism, jobs, insecurity, legal intermediaries

Disputes between Indonesia and Malaysia in the International Court of Justice on the issues of the islands of Sipadan and Ligitan continued to roll throughout the year until 1997 both countries raised this issue in international law. The two islands which are located in the center of Indonesia, precisely in the Makassar Strait, were finally won by the Malaysian side on December 17, 2002 The Court finally decided that Malaysia is the party that has full sovereignty over Sipadan Island and Ligitan Island. In its decision. The court made the doctrine of "ejfectivites" the main consideration for declaring Malaysian ownership of the two islands. According to the Court, the conventional Indonesian title claim and the OlY Malaysia chain of title claim are as weak as they cannot provide legal evidence that can support their respective ownership claims in the two disputed islands. The Court also believes that there is no authentic documentary evidence that can be sure that the two disputed islands belong to the Dutch or British territories. after various international legal channels taken by these two countries because it is based on several factors, namely: continuous presence, effective occupation, management and preservation of nature. This was confirmed in the Report of the International Court of Justice 1 August-31 July 2012, the decision of the International Court of Justice was carried out through bargaining led by presiding judge Gilbert Guillaume from France who established Malaysia as having sovereignty over the islands of Sipadan and Ligitan. Thus Malaysia has the right to draw a base line as its boundary to the outer points of Sipadan Island and Ligitan Island. As a friendly country, diplomatic relations between Indonesia and Malaysia were disrupted at that time due to the overlapping claims between Indonesia and Malaysia over the islands of Sipadan and Ligitan, which emerged since 1967, but as we know, based on The Hague's two conventions on resolving international disputes this, the countries (members) make maximum efforts to resolve international disputes peacefully. For this purpose, as long as the situation still permits or permits, the parties agree to submit their dispute to good services, mediation or the commission of inquiry to settle their dispute (diplomatic means) therefore a peaceful path is pursued by the two countries cannot do big things as a form of change in accordance with their wishes.

AbstractA century ago the Rijksprentenkabinet in Amsterdam acquired a 19th-century album containing 56 rapid sketches in black chalk after 17th-century, mostly Dutch paintings (Note 1). The sketches, which are numberd, have the names of the painters wrillen on them in the artist's own hand. They were first published in 1895 (Note 2) by E. W. Moes, who concluded that they were by a Delft artist, and C. Hofstede de Groot, who convincingly attributed them to Leonaert Bramer (1596-1674) and identified two of the paintings in question. Since then various other paintings have been identified (Notes 5, 7, 8, 11 and 12), notably by A. Blankert, who has made his findings available for the present publication, and other drawings belonging to the series have been found, Frits Lugt leading the way here (Notes 9 and 10). The present study, the first to be undertaken in depth since 1895, has brought to light three more sketches after paintings by Bramer himself (cat. nos.9-11) and one probably after Wouwerman (cat. no.65), while seven more paintings have been identified and one of the sketches without a name has proved to be after a painting by Antonio Maria Viani. Two lists of the sketches so far found are given here: that of State I reproduces the original order, that of State II gives the artists in alphabetical order as they appear in the catalogue published here. These sketches are of exceptional documentary value, since they have not only given us the names of some previously unknown painters, such as M. de Berch, J. Garbaal, P. Monincx and A. Pick, but they have also revealed unexpected aspects of some well-known ones, e.g. a still life by P. van Groenewegen, a Dutch landscape by J.B. Weenix and a genre piece of a very Utrecht character by L. de Jongh. Moreover, the sketches afford a fine glimpse of collecting in Holland in the 17th century, a subject otherwise known uirtually only from non-visual documents. On the back of one of the drawings (cat. no.6) appears a list of the owners of the pictures sketched (Fig. I), possibly written by Bramer himself. This is reproduced here in an amplified version of Moes' transcription, with one completely new name yielded by the present study. The styles given in the list suggest that the men concerned appear in it in order of their social standing. The first, Simon Graswinckel (c.1611-71), was a member of a wealthy Delft family of brewers and regents. He owned a great deal of property in and around Delft, but is reported by his brothers-in-law to have spent his time in gaming-houses and taverns (Note 30). His will of 1663 is known, but no paintings are mentioned in it. The second man on the list was probably a Van Beresteijn, another family from the wealthy upper echelons of Delft society. His precise identity came to light in a roundabout way via the inventory of 28 February 1652 of Adriaen van Vredenburg, in which are listed a number of paintings that were very probably sketched by Bramer (Note 32), notably one of Jezebel, this mention and Bramer's sketch being virtually unique indications of this subject in Dutch 17th-century painting. Vredenburg does not appear in the list of owners of the paintings, but on his death his property went to his stepdaughter, whose guardian he had been and who married Theodorus van Beresteijn in November 1652. Antonie van Bronchorst is known only from the commission he gave Bramer in 1653 to painl frescoes in his house (Note 34), while Capitein van der Bon..., Nicolaas van der Werch and Johan Persijn have not yet been traced in the Delft archives. Willem de Langue (1599-1666), on the other hand, was a lawyer and a connoisseur of paintings unparalleled in Delft in the mid 17th century (Note 36). He himself made the inventories of the paintings in important estates and he numbered many artists among his clientele (Note 37). Portraits of him and his wife by Van Vliet are known (Note 38), while he also appears as an officer in a militia piece of 1648 by Jacob Willemsz Delff (Fig. 2). Abraham de Cooge (before 1600-after 1680) was the most versatile person in the list, being an engraver, painter, dealer in tulip bulbs, organs and paintings and pottery manufacturer (Note 39). He was registered in the Guild of St. Luke in Delft in 1632 and two paintings by him are known (Note 40). In 1646 Leonaerl Bramer made illustrations to the picaresque novel Lazarilo de Tormes for him (Note 17). In the 1650's De Cooge was increasingly involved in art-dealing and that on no small scale. He also had representatives in Antwerp, so was probably among the biggest art-dealers in the Northern Netherlands. Adam Pick (c. 1622-before 1666) enrolled in the Guild of St. Luke in Delft in 1642 (Note 43) and was active in the town up to the early 1650's as a painter of landscapes, genre pieces and still lifes (Fig.3) and also as the keeper of the Toelast ( Wine Cask) inn. He probably moved to Leiden, where he is mentioned in 1654 as a vintner, in 1653, perhaps as a consequence of the death of his first wife in 1652, f or he certainly sold the inn that year. The inventory of their joint property drawn up in 1653 includes a list of paintings, which tally with nos.8(?) -98 in the State I list. Only one painting by Pick is known (Fig.3), plus the sketch by Bramer after another (cat. no.44). Reinier Jansz Vermeer (1591-1652, Note 46), the father of Johannes, started out as a silk weaver, but appears in 1629 as an innkeeper and in 1631 was registered in the Guild of St. Luke in Delft as an art-dealer. From then on he came into frequent contact with local painters, Bramer included, but his dealing was probably only a sideline of his innkeeping. He died in October 1652. The last owner on the list is Bramer himself, who returned to Delft in 1628 after a lengthy period in France and Italy (1614-27, Note 49). He played a leading part in the Guild of St. Luke and was among the most successful painters in Delft around the middle of the 17th century. Later in life, however, he was often in financial difficulties (Note 50). He was one of the very few Dutch fresco painters (Note 51), as well as a painter of history and genre pieces and a prolific draughtsman and illustrator (Note 52), while just one document provides evidence of his dealing in paintirtgs (Note 54). The presence of works by Bramer himself among the sketches seems to rule out the theory that he made them as an aide mémoire for his own use (Note 15), while their very rapid character makes it unlikely that they were produced for one of the owners as an art-object. It also seems highly improbable that the collectors/owners would have wanted their collections of paintings sketched together in one book. The most acceptable suggestion appears to be that they were made in connection with a forthcoming sale of pictures, particularly as three of the owners listed were involved in art-dealing, while in the cases of Vermeer, Pick and Van Beresteijn there was every reason for paintings from their collections being sold around the end of 1652 or beginning of 1653: Vermeer's death left his family in dire financial straits, Pick will probably have sold his pictures (as he did his inn) before moving to Leiden and Van Beresteijn will probably have wanted to realize some money on his wife's inheritance. Thus the dates of Vermeer's burial in October 1652 and Pick's inventory of March 1653 would seem to provide crucial clues to the dating of the sketches, which were probably made in rapid succession, to judge from the unity of style, despite the great diversity of the models, and the straightforward consecutive numbering. Presumably the intention was to bring these pictures from Delft collections together for a sale (Note 18) and Bramer was commissioned to make sketches in advance (or even to make a certain selection, Note 19) possibly to give an idea of what was on offer to collectors or dealers elsewhere (which might explain the 'inking in' of the painters' names originally written in chalk on five of the drawings, cat. nos. 17, 35, 36, 47 and 64). Bramer made such chalk inscriptions on ten of the drawings (Note 20), probably while sketching them. Afterwards he inscribed and numbered all of them in ink (Note 5). Notes in another 17th-century hand appear on cat. nos.22 and 24. The sheets may all have been of the same size originally, but have since been cut down, often wholly or partly along the framing lines around the sketch. This may well have been done by Bramer himsef or the dealer he made them for. Just over half of them remained together and were stuck into the present album in the 19th century. There are no portraits among the sketches and only two stll lifes and two marine paintings, but eleven Italianate landscapes and 22 history paintings. Thus the subjects differ somewhat from the categories arrived at by Montiasfor mid 17th-century Delft from his study of inventories (Note 56). The preference for history pieces is probably to be explained by the high social standing of the owners. The majority of the pictures were very modern for that time and of the 41 artists, 28 were still alive in 1652-3 and eight of them were only 35 or younger. Bramer's material contradicts Montlas' conclusion that Delft collectors showed a preference for local painters (Note 58), whose work amounted to 40-50% of that listed in the inventories. Of Bramer's 41 painters, only thirteen were from Delft (Note 59) and only five are found in Montias' list of the most common painters in Delft inventories. Thus the pictures sketched by Bramer fall outside the 'normal Delft pattern' and evince a less provincial taste. However, the collectors were still not among the leading figures of their day in this field by comparison with, for example, Boudewijn de Man of Delft (Note 62), whose collection included works by Goltzius, Bloemaert, Rubens, Rembrandt and Ter Brugghen in 1644. The pictures sketched by Bramer were presumably to be brought together for public auction and the sketches may very probably have been made with an eye to the sale catalogue. While sale catalogues are known in the second half of the 17th century, they only relate to very important collections, which makes these sketches very unusual as a documentation of a sale of pictures from average well-to-do collectors and dealers. The collection of sketches as such certainly has no parallel at this period (Note 64).

During the XIII century the king of France, king-judge, exercised his sovereign power surrounded by his vassals and above all by his advisers, clergymen with a juridical education in Roman law and Canon law, from which the importance of these judicial sessions at court. Louis IX (St. Louis) strengthened the role and the importance of it through a great reform of the procedure that enlarged the access to the royal justice of appeal to the generality of the subjects. The rigor of the new procedure was also prescribed for the same royal agents as the respect of the “common good” – that is to say the general interest – was also imposed to the feudal castellans. The enormous archives of this court, the Parliament, have been preserved (and they are denominated Olim because of the first word of one of the registers). They are constituted by around 4600 decisions made between 1254 and the 1318. Published in 1848 without a complete summary, they still remain little studied. A complete index of these decisions has been realized by the Centre d’études d’histoire juridique and published online in 2003 (on the CNRS and Université Panthéon Assa, Paris II sites).

Purpose The purpose of this paper is to analyze how Indonesian laws regulate the existence of famous brand. In case of brand Pierre Cardin, which had the elements of a famous brand including brand reputation obtained because of the public’s general knowledge, intensive and massive promotion, investment made by the owner in several countries, including Indonesia. Design/methodology/approach This study is a normative legal research conducted statutory approach reviews through court decisions in Indonesia which related to famous brands such as Pierre Cardin. The analytical method analyzes the law, the legal rulings and the famous brand case of Pierre Cardin, which became one of the sources of Law of Marks in Indonesia. The next method is a description that compares the famous brands such as Pierre Cardin in Indonesia and France. Findings The research of this paper shows that brand Pierre Cardin is one of the world’s leading brands and has registered its brands in several countries in the world. The threat to well-known brands in Indonesia is the regulation of which Indonesia has weaknesses. In Indonesia, the Law of Marks enables the state to receive registrations of similar brands, and when a dispute occurs, it allows the judge to make a decision threatening the existence of goodwill. Research limitations/implications This research discusses the legal aspects of famous brands in Indonesia that hold the constitutive system and particularly the legal threat against a famous brand in Indonesia, Pierre Cardin. Practical implications This paper discusses the threats that will occur in famous brands that registered in many countries, such as Indonesia. This became a reference for the famous brand company to be able to adjust the law in Indonesia. Social implications This paper informs the legal threats can be a weakness of law in Indonesia; therefore, the governance should revise the regulation about marks to accommodate the existence of famous brands company in Indonesia. This paper gives recommendations for government to be more flexible to regulate the registration for the famous brand and tighten regulation of brand rights for local brands to avoid infringement in Indonesia. The protection of brand rights for a famous brand company in Indonesia can be realized and will be possible. Originality/value This paper is original and must-read. This research can be a reference for famous brand companies that will register brand rights in Indonesia because it discusses about the case between Pierre Cardin brand in Indonesia and French. This paper gives perspectives based on the Law of Marks in Indonesia. Furthermore, this paper also discusses some Law of Marks in Indonesia that should be strengthened.

En tant que juge administratif spécialisé, le juge financier, entendu au sens de la Cour des comptes, des Chambres régionales des comptes et de la Cour de discipline budgétaire et financière, dispose d'une compétence d'attribution. Il lui revient ainsi d'assurer le respect des règles budgétaires et de la comptabilité publique. La perspective visant à apprécier le juge financier en tant que juge administratif, c'est-à-dire en tant que juge administratif de droit commun, peut dès lors soulever certaines objections. Néanmoins, la jurisprudence financière démontre de nombreuses et régulières interventions du juge financier comparables à celles d'un juge administratif. L'application des règles du droit administratif, les qualifications opérées, les contrôles sur les actes administratifs relevant d'un contrôle de légalité sont autant d'illustrations de ce rôle joué, de façon inattendue, par le juge financier. Ces activités, a priori non naturelles pour ce dernier, devaient dès lors inciter à orienter l'analyse autour des raisons pour lesquelles les juridictions financièresse trouvaient en position de juge administratif. Pouvaient alors être distinguées deux cas de figure. D'une part, il apparaissait nécessaire pour le juge financier, dans certaines hypothèses, d'agir tel le juge administratif. D'autre part, le juge financier affirmait, dans certains cas, une véritable volonté d'intervenir comme tel

Defence date: 29 November 1991
Examining board: Prof. B. de Witte, I.U.E., superviseur ; Prof. L.M. Diez-Picazo, I.U.E. ; Prof. J.C. Escarras, Toulon ; Prof. A. Pizzorusso, Pise ; T. Renoux, Aix-Marseille ; Prof. M. de Villiers, Nantes
PDF of thesis uploaded from the Library digitised archive of EUI PhD theses completed between 2013 and 2017

This chapter argues that, if France has been the home of administrative courts, Austria has greatly contributed to the development of administrative law with regard to administrative procedure. Thanks to the Austrian Administrative Court, established in 1875, administrative law has been increasingly important in the regulation of public affairs. The chapter analyses the causes, development, and effects of these features. One main theme is, of course, the scope and purpose of judicial review of administrative action. In this respect, the chapter shows the growth of litigation and the liberal approach followed by the Court. Moreover, the role of the Court as lawmaker is examined in the light of the general principles of law that it developed. . Such principles included legality and procedural fairness, with particular regard to the right to a hearing and the duty to give reasons. Considered as a whole, they required public administrations to act reasonably rather than arbitrarily. Finally, it was judge-made law that constituted the basis for the codification of 1925.