Influence of the Legal Cultures on the Grounds Relating to Substantive Exercise of Discretion

2021 ◽  
pp. 175-214
Author(s):  
Voraphol Malsukhum
Keyword(s):  
Exercise Of Discretion

International Arbitration as a Tool of Global Governance

2019 ◽  
Author(s):  
Sophie Nappert
Keyword(s):  
Global Governance ◽  
Rule Of Law ◽  
International Arbitration ◽  
The Rule Of Law ◽  
Arbitration Process ◽  
Fact Finding ◽  
Exercise Of Discretion ◽  
The Impact

It has been posited that the international arbitration process carries with it not only fact-finding and lawmaking functions but also a governance function insofar as “arbitrators … can and do engage in autonomous normative action while still adhering to the rule of law.” This contribution explores the role and ambit of the exercise of discretion by international arbitration tribunals and its interplay with the tribunals’ governance function, as arbitrators must consider “the impact of their rulings on states, persons or entities not directly represented in the case before them.” It questions whether the use of discretion is suited to the governance role of arbitral tribunals and serves, rather than compromises, the effective exercise of that role. It asks what measures ought to be considered to make arbitrators better prepared for the exercise of their governance function.

scholarly journals The power-trust cycle in global health: Trust as belonging in relations of dependency

2021 ◽  
pp. 1-21
Author(s):  
Emma-Louise Anderson ◽  
Laura Considine ◽  
Amy S. Patterson
Keyword(s):  
Global Health ◽  
Health Outcomes ◽  
Positive Health ◽  
Global Health Initiatives ◽  
Health Initiatives ◽  
Power Trust ◽  
Trust And Power ◽  
Positive Health Outcomes ◽  
Exercise Of Discretion ◽  
The Relationship

Abstract Trust between actors is vital to delivering positive health outcomes, while relationships of power determine health agendas, whose voices are heard and who benefits from global health initiatives. However, the relationship between trust and power has been neglected in the literatures on both international politics and global health. We examine this relationship through a study of relations between faith based organisations (FBO) and donors in Malawi and Zambia, drawing on 66 key informant interviews with actors central to delivering health care. From these two cases we develop an understanding of ‘trust as belonging’, which we define as the exercise of discretion accompanied by the expression of shared identities. Trust as belonging interacts with power in what we term the ‘power-trust cycle’, in which various forms of power undergird trust, and trust augments these forms of power. The power-trust cycle has a critical bearing on global health outcomes, affecting the space within which both local and international actors jockey to influence the ideologies that underpin global health, and the distribution of crucial resources. We illustrate how the power-trust cycle can work in both positive and negative ways to affect possible cooperation, with significant implications for collective responses to global health challenges.

scholarly journals Implementing safeguarding and personalisation in social work: Findings from practice

2016 ◽  
Vol 18 (1) ◽  
pp. 3-22 ◽  
Author(s):  
Martin Stevens ◽  
John Woolham ◽  
Jill Manthorpe ◽  
Fiona Aspinall ◽  
Shereen Hussein ◽  
...  
Keyword(s):  
Social Workers ◽  
Research Study ◽  
Qualitative Interviews ◽  
Good Practice ◽  
Direct Payment ◽  
Positive Outcomes ◽  
Policy Objectives ◽  
Direct Payments ◽  
And Control ◽  
Exercise Of Discretion

Summary This paper reports on part of a research study carried out in three local authority adult social care departments in England, which explored links between adult safeguarding and personalisation. The study included statistical analysis of data on safeguarding referrals and the take up of personal budgets and qualitative interviews with managers, social workers, other staff working on safeguarding and with service users. The paper reports the findings from 16 interviews with managers and social workers, highlighting their perspectives and experiences. Findings Five main themes emerged from our analysis: contexts and risk factors; views about risks associated with Direct Payments, approaches to minimising risk; balancing risk and choice; and weaving safeguarding and personalisation practice. Social workers identified similar ranges and kinds of risks to those identified in the national evaluation of Individual Budgets. They described a tension between policy objectives and their exercise of discretion to assess and manage risks. For example, some described how they would discourage certain people from taking their personal budget as a Direct Payment or suggest they take only part of a personal budget as a Direct Payment. Application This exploratory study supports the continued need for skilled social workers to deliver outcomes related to both safeguarding and personalisation policies. Implementing these policies may entail a new form of ‘care and control’, which may require specific approaches in supervision in order to ensure good practice is fostered and positive outcomes attained.

Law of Police Seizures and the Exercise of Discretion

2014 ◽  
pp. 2852-2857 ◽  
Author(s):  
I. Bennett Capers ◽  
Alafair S. Burke
Keyword(s):  
Exercise Of Discretion

scholarly journals Disclosure and Production in Sexual Violence Cases: Situating Stinchcombe

1969 ◽  
pp. 655
Author(s):  
Jennifer Koshan
Keyword(s):  
Sexual Violence ◽  
Violence Against Women ◽  
Supreme Court Of Canada ◽  
Appellate Courts ◽  
Judicial Decisions ◽  
Trial Judges ◽  
The Supreme Court ◽  
History Of ◽  
Exercise Of Discretion ◽  
Case Basis

This article examines the issue of disclosure and the legacy of Stinchcombe through a review of the history of disclosure and production in criminal sexual assault proceedings and an analysis of judicial decisions and legislative enactments in this context. The author presents a feminist analysis of the tension between those representing the rights of accused persons who seek to access a complainant's personal records and the voices of equality-seeking and anti-violence groups that challenge stereotypes about sexual violence against women. The author presents a comprehensive review of the louver court decisions in production applications since the Supreme Court of Canada decision in R. v. Mills. The author concludes that while Bill C-46 and Mills are positive developments, a great deal of discretion is left to trial judges to decide on the merits of production on a case-by-case basis, and such decisions are granted much deference by appellate courts. The exercise of discretion may encourage the application of stereotypes about women and sexual violence and is the reason an absolute ban on production is preferred by women's and anti- violence groups.

11. Maintenance and advancement and protective trusts

2018 ◽  
Author(s):  
Richard Clements ◽  
Ademola Abass
Keyword(s):  
Wide Range ◽  
Statutory Power ◽  
Complete Series ◽  
Explanatory Text ◽  
Exercise Of Discretion ◽  
Primary Materials

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter discusses the following: express powers of maintenance; exclusion of maintenance; the statutory power of maintenance; power to maintain infant beneficiaries, duty to maintain an adult beneficiary; accumulations; trust income; contingent pecuniary legacies; the power of the courts to award maintenance; the meaning of advancement; the statutory power of advancement; express powers of advancement; trustees discretion in granting maintenance and advancement; the courts’ power to authorize advancements; the exercise of discretion; and protective trusts and determining events.

Implementing social policy in Brazil: an inter-contextual exploration of the exercise of discretion by street-level bureaucrats

2020 ◽  
pp. 1-19
Author(s):  
Vicente da Rocha Soares Ferreira ◽  
Janann Joslin Medeiros ◽  
Charlotte Lyn Bright ◽  
Charles David Crumpton
Keyword(s):  
Social Policy ◽  
Street Level ◽  
Street Level Bureaucrats ◽  
Exercise Of Discretion

Structure and Substance: Developing a Practical and Effective Prohibition on Discrimination under the European Convention on Human Rights

2003 ◽  
Vol 6 (1) ◽  
pp. 45-68 ◽  
Author(s):  
Joan Small
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Equal Weight ◽  
Free Standing ◽  
Substantive Equality ◽  
European Court ◽  
Full Effect ◽  
Indirect Discrimination ◽  
Exercise Of Discretion ◽  
Near Future

Article 14 of the European Convention on Human Rights has not had any real measure of success. This may be explained in part by its lack of free-standing status and in part by the unwillingness of Convention bodies to give it full effect. All too common to European human rights jurisprudence is the Court's exercise of discretion to refrain from ruling on the discrimination claim when another substantive article has been breached. Common too is the failure to apply rigorously standards of interpretation which have rendered the article weak in terms of a substantive equality guarantee. Protocol 12 seeks to overcome these difficulties, by creating an equality guarantee with equal weight as other Convention rights. The Protocol is not likely to enter into force in the near future. In the meantime, the European Court of Human Rights appears to be making efforts to strengthen the Article 14 jurisprudence. First, the Court seems to be showing some increased willingness to deal with the discrimination claim. Second, the prohibited grounds have been extended, in terms that invite comment on the rationale for prohibited grounds. Third, a claim based on indirect discrimination has finally succeeded. Each of these disparate developments, taken together, signal attempts on the part of the Court to take Article 14 seriously. It is suggested that these attempts, while important, lack principled reasoning, and that domestic courts should take seriously the task of supplying principles on which the Court can rely for guidance.

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