Independent Development of Israeli Law

1975 ◽  
Vol 10 (4) ◽  
pp. 515-568 ◽  
Author(s):  
Daniel Friedmann
Keyword(s):  
Supreme Court ◽  
International Law ◽  
Legal System ◽  
Case Law ◽  
Private International Law ◽  
Privy Council ◽  
The Past ◽  
Foreign Law ◽  
Local Law ◽  
English Law

It is not always easy to decide when we must turn to English law. And once it has been determined that reference to English law is appropriate, there is the further question of the substance and application of principles drawn from English law. In such case, English law forms part of the local law, and need not be ascertained as required by the rules of private international law in respect of foreign law.This makes the local law directly dependent upon English case-law, which itself is constantly being renewed and developed. Such dependence may seem to impair the independence of the Israeli legal system. The question could not, of course, be raised during the Mandatory period at a time when there existed a possibility of appeal from the Mandatory Supreme Court to the Privy Council in Westminster. But after the establishment of the State Cheshin J. said:It is unthinkable that a sovereign nation with its own laws and its own legal system would continue to be subject to the authority of a foreign nation's legal system and to changes in rulings which are likely to be introduced in her courts, only because in the past, when there was a strong tie between the two nations, the former drew from the legal system of the latter.

scholarly journals Foreign Law Rules in French Justice: The Basic Problems and Challenges

Law and World ◽  
2021 ◽  
Vol 7 (5) ◽  
pp. 195-205
Keyword(s):  
International Law ◽  
Case Law ◽  
Private International Law ◽  
Legal Proceedings ◽  
Applicable Law ◽  
Legal Relationship ◽  
Foreign Law ◽  
French Case ◽  
Local Law ◽  
The Right

Private international law plays an important role in defining applicable law and regulating private international law relations. Foreign law is significantly different from local law. Judges do not have the right to change the content of foreign law, they simply have the opportunity to reject or apply foreign law. When a judge is obliged to make a decision based on the rules of national law in the process of legal proceedings, it is clear that the law of a foreign country can- not enjoy the same status. The issue of determining the content of foreign law and its application remains one of the most problematic issues in the private international law of countries around the world. French case law has gone through a difficult and controversial path to formulate a decisive position on the application of foreign law. Resolving this problem was especially important for France, as the courts of this country have to deal with a large number of international litigation cases. The basis for the application of foreign law is the choice of French private international law rules, as a particular legal relationship is subject to regulation by a foreign legal system. Thus, French courts apply foreign law to administer high-quality justice, as finding the right solution lies in applying foreign law.

Schemes of Arrangement: Law and Practice

2012 ◽  
Author(s):  
Geoff O’Dea ◽  
Julian Long ◽  
Alexandra Smyth
Keyword(s):  
International Law ◽  
Case Law ◽  
Private International Law ◽  
Sources Of Information ◽  
Foreign Companies ◽  
Pros And Cons ◽  
English Law ◽  
The Law ◽  
The Uk

This new guide to schemes of arrangement draws together all of the elements of the law and practice concerning both creditor and member schemes. Member schemes of arrangement have become the preferred method of implementing takeovers in the UK. Creditor schemes of arrangement are increasingly used in restructuring matters and the trend in their usage in foreign companies is likely to continue as many credit documents across Europe are arranged and underwritten in London under English law. The book considers the effect given to an English scheme in foreign jurisdictions, and other Private International Law issues. A major issue for those considering a scheme for creditors is whether a scheme or CVA (Company Voluntary Arrangement) is more appropriate and this book assists the reader by including an analysis of the pros and cons of schemes and CVAs. There are very few sources of information on schemes of arrangement and the area takes much of its substance from case law. This book, addressing the law and practical issues faced by practitioners on a day-to-day basis, is a first in the field.

scholarly journals Qualification of Concepts and its Problems in Cases with Foreign Element in Poland and the United Kingdom

2013 ◽  
Vol 32 (1) ◽  
pp. 67-74
Author(s):  
Katarzyna Bagan-Kurluta
Keyword(s):  
United Kingdom ◽  
International Law ◽  
Case Law ◽  
Functional Method ◽  
Internal Source ◽  
Private International Law ◽  
Uniform Approach ◽  
The United Kingdom ◽  
Foreign Law ◽  
The Law

Abstract Qualification is the basic instrument used in the process of application of the law. It is impossible to apply the law without conducting it. The main internal source of collision law in Poland, Act of private international law dated February 4th, 2011, does not specify how to carry on the process of the qualification, and doctrine is of the opinion that the Polish court applying foreign law should interpret the foreign concepts according to the rules of this law and give them such meanings as this law assigns to them. But also there are four doctrinal proposals concerning methods of qualification. The first one (with various modifications) is relatively popular in a number of countries, while the Polish doctrine has the greatest respect for the latter: 1) lex fori approach, 2) lex causae approach, 3) autonomous method and 4) functional method (or collision lex fori approach). The English judge applying the rules derived from his own internal law remembers about the function of private international law - and therefore takes into account the rules and institutions adopted in the foreign laws. That is application of lex fori approach modified because of the function of collision law, indeed reminiscent of a functional method. However, due to the lack of a uniform approach to qualification and identification of the only way to proceed by the doctrine and case law, it is permissible to move away from the use of this method. For instance it is possible to use the lex causae approach, if it leads to an equitable solution. Lack of regulation of qualification gives a person applying the law a freedom, but at the same time leads to uncertainty about the effects.

The Effect of Foreign Law on the Law of Israel: Remnants of the Ottoman Period

1975 ◽  
Vol 10 (2) ◽  
pp. 192-206 ◽  
Author(s):  
Daniel Friedmann
Keyword(s):  
Legal System ◽  
Case Law ◽  
Legal Norm ◽  
Legal Systems ◽  
Historical Source ◽  
Foreign Law ◽  
Local Law ◽  
The Law

This series of articles is intended to deal with one aspect of the sources of Israel law, namely the influence of foreign legal systems and principles derived therefrom on Israel law and on the attempt in recent years to independent creation of local law.Foreign law constitutes on occasion an actual legal source for the law of Israel. This occurs when a local enactment refers to foreign law and makes it applicable in certain situations. In such case the foreign law which we are to apply constitutes an obligatory legal norm in Israel and is, in fact, part of the Israel legal system. In other cases foreign law influences the process of creation of local law but does not constitute a formal source of law in the Israel system. This happens, for example, when Israel case law relies for authority upon some rule established in an American decision (which is, of course, not binding in Israel) or when the Israel legislator is influenced by a principle of law derived from another legal system. We might say there that the foreign law is an historical source for the Israel rule.

scholarly journals La consolidación de una lúcida doctrina judicial sobre poligamia y pensión de viudedad: la STSJ de Andalucía de 24 de mayo de 2018 = The consolidation of a lucid case law on polygamy and pensions: the decision of the Higher Court of Andalusia of May 24, 2018

2019 ◽  
Vol 11 (1) ◽  
pp. 801
Author(s):  
Pilar Juárez Pérez
Keyword(s):  
Public Policy ◽  
International Law ◽  
Legal System ◽  
Case Law ◽  
Private International Law ◽  
Polygamous Marriage ◽  
The Absolute

Resumen: Durante el año 2018 los tribunales españoles tuvieron que pronunciarse en diferentes ocasiones sobre los efectos legales que en España pueda tener el matrimonio poligámico celebrado váli­damente en el extranjero. La institución de la poligamia es progresivamente una figura cada vez menos ajena a nuestro entorno jurídico, dada la reiteración con que se plantea ante nuestros órganos jurisdiccio­nales. Esta reincidencia es en gran medida responsable del progresivo cambio de la percepción judicial española ante esta figura: del rechazo absoluto y sin matices a la admisión de ciertas consecuencias jurídicas, en aras de una interpretación tuitiva de la poligamia. Así lo evidencia la sentencia que aquí se analiza, que reconoce el derecho a la pensión de viudedad de la una ciudadana española que había con­traído matrimonio poligámico en Marruecos con un nacional de dicho país. Con esta decisión, el TSJ de Andalucía ratifica y consolida su lúcida línea interpretativa en esta materia, desde hace años partidaria de aplicar la doctrina del orden público atenuado a una institución plagada de matices, que casan mal con apreciaciones radicales y simplistas.Palabras clave: orden público internacional, pensión de viudedad, poligamia, Derecho internacio­nal privado.Abstract: During the year 2018 the Spanish courts issued various judgments on the legal effects that in Spain may have the polygamous marriage legally celebrated abroad. The polygamous marriage is less and less unknown for the Spanish legal system, because is a matter frequently submitted to our courts. The reiteration of these demands has helped to change the judicial perception of this institution: from the absolute rejection to the admission of some legal effects, because of a protective interpretation of polygamy. The decision of the Higher Court of Andalusia of Mai 24, 2018 is an illustrative example of this, by the recognition of widow’s pension to a Spanish woman who got a polygamous marriage to a Moroccan national in Morocco. This sentence confirms and consolidates the lucid case law of Anda­lusian Court, traditionally in favour of attenuated public policy for an institution with many shades, not adequate for simplistic and radical interpretations.Keywords: public policy, widow’s pension, polygamy, private international law.

Acta Et Agenda

1977 ◽  
Vol 36 (1) ◽  
pp. 47-61
Author(s):  
K. Lipstein
Keyword(s):  
International Law ◽  
English Language ◽  
Common Law ◽  
Private International Law ◽  
Foreign Law ◽  
Domestic Courts ◽  
The Common ◽  
English Law ◽  
Greek Scholar

When I was first called upon to lecture during the darkest days of the war in 1941, because Hersch Lauterpacht was on some mission, I was still surrounded by my own teachers—Buckland, Duff, Gutteridge and McNair (Hazeltine had left). Of these Gutteridge and McNair influenced me most—the former by convincing me that foreign law was well worth studying, if not for its own sake, then in order to test the validity of one's own cherished notions and established techniques and to acquire the inspiration for new solutions, but not in order to discover an all pervading droit commun legislatif. McNair impressed upon me the reality of the rules of international law in the practice of states and in the administration of law by domestic courts. Not monism of a doctrinaire kind, but the age old tradition of the common lawyer to interpret English law so as not to conflict with international law was his inspiration, which has guided me ever since. I must not omit two other formative influences from times long passed. My teachers in Berlin included the last “Pandectist” (Th. Kipp), the broadly based Romanist, Greek scholar and modern comparatist as well as innovator of private international law (Rabel), and the superb exponent of private and private international law (M. Wolff) whose nephew, I am happy to think, will continue the propagation of the work which has been carried out in Cambridge since 1930 by Gutteridge, Hamson and myself. Gutteridge, Rabel and Wolff, whose works in the English language have enriched the fund of the common law, probably gave me the foundations on which most of my own work is based.

scholarly journals Foreign law in higher courts practice. The key characteristics of Georgian private international law

2021 ◽  
Vol 11 (special) ◽  
Author(s):  
Tamar MSKHVILIDZE
Keyword(s):  
International Law ◽  
Information Technologies ◽  
Case Law ◽  
Private International Law ◽  
Foreign Countries ◽  
Foreign Law ◽  
Key Characteristics ◽  
Lower Courts ◽  
Modern Information ◽  
Correct Application

This paper aims to investigate the application of foreign law in higher courts practice. The process of determining a foreign law raises practical difficulties, as a judge must apply not just foreign law acts, but also the case law and interpretation with which it is applied in another State. In private international law process the effectiveness of the application of foreign law depends on how correctly and delicately can the higher courts review decisions made by the first instances. In some countries, higher courts have the power to control the correct application or non-application of foreign law by judges, but in some cases, such courts lack this ability. In spite of the development of comparative jurisprudence and modern information technologies, none of the countries’ judge can have a claim on exact knowing of relevant standards of the law of foreign countries. Consequently, the danger of making a mistake is more greater when it comes to interpreting and applying foreign law. Thus, it cannot be expected that the higher court should be able to review interpretation of foreign law acts applied by the lower courts and to provide that this interpretation is relevant to that which the practice of the foreign country would adopt on the same question. There is an opinion that the higher courtsshould refrain from control the wrong application of foreign law in order to guard their own authority, as there is a high risk of misinterpretation of a foreign rule. The different aspects of this problem will be examined in this article.

scholarly journals Problems of legal qualification in private international law: doctrine, case law and Ukrainian law

2020 ◽  
Vol 3 ◽  
pp. 129-139
Author(s):  
Natalia Perestiuk
Keyword(s):  
International Law ◽  
Case Law ◽  
Private International Law ◽  
Valuable Contribution ◽  
Choice Of Law ◽  
Foreign Law ◽  
Alternative Approaches ◽  
Controversial Nature ◽  
Historical Origins

In this paper, the author observes the historical origins and development of doctrines of qualification (characterization) in private international law. Analyzing different approaches as to the place of qualification in the process of operation with a choice-of-law rule, as to its scope and subject, as well as to the distinction between qualification and interpretation processes, the author concludes on the controversial nature of this issue, as well as of the alternative views on the qualification subject and approaches to qualification that may be followed by a judge. Considering current Ukrainian private international law act within the context of alternative approaches to qualification (characterization), the author recognises valuable contribution of its Article 7, arguing that it is exactly a function embodied into a foreign law institute should be treated as a point of synchronization with the relevant choice-of-law rule of the forum. And the role of the case law the author sees as a decisive in the course of such approach implementation.

scholarly journals Transnational Hindu law adoptions: recognition and treatment in Britain

2009 ◽  
Vol 5 (2) ◽  
pp. 107-130 ◽  
Author(s):  
Prakash Shah
Keyword(s):  
Human Rights ◽  
Control System ◽  
International Law ◽  
Legal System ◽  
Case Law ◽  
Immigration Law ◽  
Private International Law ◽  
Immigration Control ◽  
Judicial Decisions ◽  
The Uk

This article examines how the adoption of children under Hindu law in India is regarded by British private international law and immigration law. Through an analysis of case-law, it focuses particularly on how British judges regard the legitimacy of exclusion by the British immigration control system of children who have been adopted under a ‘foreign’ legal system which essentially permits private adoption arrangements. Examining the background to the regime of Indian Hindu law adoptions (which applies to Sikhs as well as Hindus), and the private international law and immigration rules which apply to such adoptees in the UK, the article finds some evidence in the judicial decisions of a more activist, human-rights-based, plurality-conscious position being taken. However, tracking the case-law further, the article concludes that such activism has not been followed through in more recent decisions leaving the conflictual position between transnational adopters and British legal systems largely unresolved.

scholarly journals Judicial Globalization in the Service of Self-Government

2006 ◽  
Vol 20 (4) ◽  
pp. 477-503 ◽  
Author(s):  
Martin S. Flaherty
Keyword(s):  
Supreme Court ◽  
International Law ◽  
Legal System ◽  
Elected Officials ◽  
The Past ◽  
General Utility ◽  
The Supreme Court ◽  
The World ◽  
Domestic Law ◽  
The U.S

For at least the past several decades, judges around the world have been looking beyond their own states' jurisprudence to international law and the decisions of foreign courts in order to apply domestic law. This widespread practice is part of a phenomenon that Anne-Marie Slaughter calls “judicial globalization.” The American judiciary, however, has exhibited a distinct diffidence toward the use of comparative and international law to decide domestic cases, a diffidence that extends to many elected officials as well… .Various defenses of the Supreme Court's reliance on international and comparative sources have been made, not least by some of the Supreme Court justices themselves. None of the defenses, however, have met the democratic objections head-on. Instead, justifications have mainly defended the general utility of referencing additional sources rather than the specific legitimacy of referencing sources from outside the U.S. legal system. The defenses to date fall short for at least two sets of reasons. They fail to grapple with legitimate concerns about the practice. In consequence, they offer no reasons for those opposed to this practice to reconsider their resistance.

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