Part III Tests of Abuse, 9 Defences

2011 ◽  
Author(s):  
Nazzini Renato
Keyword(s):  
Social Welfare ◽  
Burden Of Proof ◽  
Prima Facie ◽  
Sufficient Evidence ◽  
Competition Authority ◽  
Prima Facie Case ◽  
Competitive Effects ◽  
Social Welfare Maximization

This chapter explores the defences available to a prima facie case of abuse. Two preliminary issues had to be clarified first: the burden of proof and the thresholds of anti-competitive effects. When a prima facie case of abuse has been established, the dominant undertaking acquires the burden of adducing sufficient evidence to substantiate a defence. This calls for the determination of the degree of probability of the anti-competitive effects that the competition authority or claimant must prove. Defences under Article 102 can be divided into mere defences and objective justification. Mere defences do not plead a new primary fact but are limited to challenging the weight or significance of the evidence adduced by the competition authority or claimant. Objective justification is a defence that pleads a new primary fact consisting of benefits that contribute to long-term social welfare maximization.

scholarly journals The burden and order of proof in WTO claims: evolving issues

2017 ◽  
Vol 59 (6) ◽  
pp. 1220-1235
Author(s):  
Zeina Ahmad ◽  
Bashar H. Malkawi
Keyword(s):  
Dispute Settlement ◽  
Burden Of Proof ◽  
Prima Facie ◽  
Dispute Settlement Mechanism ◽  
Prima Facie Case ◽  
Content Type ◽  
Wto Dispute Settlement ◽  
The World ◽  
The Subject ◽  
Evidence And Proof

Purpose The World Trade Organization (WTO) is one of the best dispute settlement mechanisms in the world. Under WTO rules, aggrieved parties must establish a “prima facie” case before the panel can call on the offending party to respond to the claims. The objective of the present study is to critically evaluate the application of the concept of burden of proof under WTO dispute settlement mechanism. Design/methodology/approach The paper examines the rule of “prima facie” in WTO jurisprudence. To do so, the first part will focus on the development of dispute settlement within WTO. The second part is divided into several subsections that will focus on the burden of proof concept, burden of proof in common law, burden of proof in civil law and the prima facie standard. Findings The DSU does not explicitly regulate how to allocate the burden of proof, but panels and the AB needed to address that issue early in their history. Despite this, all aggrieved parties to establish a prima facie case before the case can become the subject of a panel hearing. There is a need to adopt a burden of proof standard that assesses evidence on the basis of preponderance of the available evidence rather than on the basis of a party’s failure to adduce evidence to back up or dispute a claim. Originality/value The paper is an attempt to address an important issue on the presentation of evidence and proof in international litigation, i.e. WTO.

The Moral and Economic Case for Free Immigration

2018 ◽  
Author(s):  
Bas van der Vossen ◽  
Jason Brennan
Keyword(s):  
Common Sense ◽  
Burden Of Proof ◽  
Economic Models ◽  
Prima Facie ◽  
Free Movement ◽  
Prima Facie Case ◽  
Freedom Of Movement ◽  
Open Borders ◽  
Moral Case

The chapter makes a prima facie case for open borders. It argues that there is a strong common-sense moral case for free movement because migration restrictions coercively interfere with people’s freedom of movement. Such restrictions generally stand in need of justification. Second, there also exists a strong economic case for free movement. Economic models and history suggest that freeing up migration will be an enormous benefit to both migrants and receiving populations. The chapter concludes by suggesting that even though it does not offer a conclusive case for open borders by itself, the burden of proof squarely lies with those who would oppose immigration.

scholarly journals PEMAKAIAN PRIMA FACIE DI AKHIR KES PENDAKWAAN JENAYAH SYARIAH DI MALAYSIA: ISU DAN PENYELESAIAN

2020 ◽  
Vol 5 (1) ◽  
pp. 395-413
Author(s):  
Suhaizad Saifuddin ◽  
Azam Mohd Shariff ◽  
Muhamad Helmi Md. Said
Keyword(s):  
Content Analysis ◽  
Criminal Justice ◽  
Burden Of Proof ◽  
Prima Facie ◽  
Criminal Prosecution ◽  
Criminal Cases ◽  
Legal Requirements ◽  
Prima Facie Case ◽  
Standard Of Proof ◽  
Two Stages

Latar belakang dan tujuan: Terdapat dua peringkat perbicaraan kes jenayah syariah yang berkaitan dengan pemakaian darjah pembuktian iaitu pada akhir kes pendakwaan dan kes pembelaan. Peruntukan undang-undang yang tidak jelas berkaitan darjah pembuktian di akhir kes pendakwaan telah menyebabkan pemakaian darjah pembuktian yang tidak seragam. Kajian ini bertujuan untuk menganalisis pemakaian prima facie sebagai darjah pembuktian di akhir kes pendakwaan jenayah syariah. Selain itu, kajian ini juga cuba untuk mengenalpasti faktor-faktor yang mendorong kepada pemakaian prima facie bagi kes jenayah syariah di negara ini.   Metodologi: Data diperolehi melalui bahan-bahan dokumentasi seperti statut perundangan, kes-kes yang dilaporkan dan yang tidak dilaporkan. Di samping itu, kajian ini telah menemubual enam orang pengamal undang-undang syariah yang berpengalaman luas yang terdiri daripada empat orang hakim syarie, seorang pendakwa syarie dan seorang peguam syarie bagi mendapatkan penjelasan dan pandangan. Data dan maklumat yang diperolehi dianalisis menerusi instrumen analisis kandungan secara kritis dan kritikal.   Dapatan Kajian: Dapatan penulisan mendapati pemakaian prima facie bagi kes jenayah syariah adalah tidak sesuai dan kurang tepat. Ini kerana frasa prima facie tidak diperuntukkan dalam undang-undang dan hukum syarak.   Sumbangan: Hasil kajian ini penting dalam memberikan penjelasan kepada pengamal undang-undang syariah supaya darjah pembuktian yang sesuai dengan prinsip syariah dapat di aplikasi pada akhir peringkat pendakwaan kes jenayah syariah bagi menggantikan pemakaian prima facie selaras dengan kehendak undang-undang dan roh prinsip jenayah syariah.   Kata kunci: Beban pembuktian, darjah pembuktian, isu, jenayah syariah, prima facie.   ABSTRACT Background and Purpose: There are two stages in the trial of shariah criminal cases related to the application of the degree of evidence, namely at the end of the prosecution case and the defense case. There is an ambiguity in the provision of laws with regards to the burden of proof at the end of prosecution case.  This paper aims to analyze the prima facie application of the degree of proof at the end of the prosecution case in the shariah criminal justice. Besides, this paper aims to identify the factors of the prima facie application in the shariah criminal cases in the country.   Methodology: Data were obtained through documentation materials such as statutes, reported cases and unreported cases. Six experienced shariah law practitioners including four shariah judges, a shariah prosecutor and a shariah lawyer were interviewed to obtain their view and clarifications. The data were analyzed using a critical and analytical content analysis approach.   Findings: The study found that prima facie used in the shariah criminal cases was inappropriate and inaccurate as the meaning of prima facie has never been clearly clarified by shariah law.   Contributions: The findings of this study are useful in guiding shariah law practitioners so that a degree of proof that is in accordance with shariah principles can be applied at the end of the criminal prosecution stage to replace prima facie application in accordance with the legal requirements and the spirit of the principles of shariah criminal justice. Keywords: Burden of proof, issues, prima facie, shariah crime, standard of proof.   Cite as: Saifuddin, S., Mohd Shariff, A. A., & Md. Said, M. H. (2020). Pemakaian prima facie di akhir kes pendakwaan jenayah syariah di Malaysia: Isu dan penyelesaian [Application of prima facie case at the end of prosecution case in the syariah criminal justice: Issues and solutions]. Journal of Nusantara Studies, 5(1), 395-413. http://dx.doi.org/10.24200/jonus.vol5iss1pp395-413

from hypoglycaemia and was unaware of his actions. The judge refused to leave that defence to the jury. Held, allowing the appeal, the arguments put to the judge failed to distinguish between hyperglycaemia and hypoglycaemia, the former being too much sugar in the blood, and the latter too little. Hyperglycaemia might raise difficult problems about the M’Naghten Rules and verdicts of not guilty by reason of insanity. Hypoglycaemia was not caused by the initial disease of diabetes, but by the treatment in the form of too much insulin, or by insufficient quality or quantity of food to counterbalance the insulin. Generally speaking, that would not give rise to a verdict of not guilty by reason of insanity but would, if it were established and showed that the necessary intent was or might be lacking, provide a satisfactory defence to an alleged crime such as theft, due to lack of mens rea. Those simple facts would be plain to anyone who troubled to read Quick (1973) 57 Cr App R and Hennessy [1989] 1 WLR 287. In the present case, the problem was hypoglycaemia and the judge had to decide whether, on the evidence, there was a prima facie case for the jury to decide whether the defendant was suffering from its effects and, if so, whether the Crown had shown that he had the necessary intent under the Theft Act. It was not doubted that the defendant was a diabetic and there was evidence that he might have been suffering from the effects of a low blood sugar level at the relevant time. That evidence should have been left to the jury. Notes and queries 1 In RvT [1990] Crim LR 256, the court accepted evidence that post-traumatic stress disorder could give rise to automatism. By contrast, in R v Sandie Smith [1982] Crim LR 531, evidence of severe pre-menstrual tension was not accepted as giving rise to automatism. Aside from the issue of whether there was sufficient evidence of automatism in the latter case, the determining factor was the court’s desire to exercise some jurisdiction over the accused. If a plea of automatism is successful the defendant is free to go – the courts cannot compel him or her to receive treatment for the condition giving rise to the automatism. Self-induced automatism

1996 ◽  
pp. 294-298
Keyword(s):  
Blood Sugar Level ◽  
Prima Facie ◽  
Sufficient Evidence ◽  
Mens Rea ◽  
Post Traumatic Stress ◽  
Prima Facie Case ◽  
Post Traumatic ◽  
Receive Treatment ◽  
To Receive ◽  
Determining Factor

Petition: The Appeal Committee of the House of Lords (Lord Fraser of Tullybelton, Lord Roskill and Lord Bridge of Harwich) dismissed a petition by the appellant for leave to appeal. Ryan and French v DPP [1994] Crim LR 457 (DC) Facts: A month after a dinghy had been stolen, the loser saw it in the possession of the appellants. They claimed that the appellant French had bought it a year previously. They were charged with both theft and handling of the dinghy. Justices convicted them of the handling and acquitted them of the theft. On appeal by way of case stated it was argued: (1) that the justices would have had to have found as a fact that the appellants were not the thieves, which they could not have done, as the evidence was equally consistent with theft as handling; (2) the justices should have directed themselves to withdraw the count of handling, the evidence being more consistent with theft. The question certified was: ‘Can a conviction of handling be justified on the evidence given, having regard to the fact that the appellants were acquitted on the count of theft?’ Held, dismissing the appeal: (1) It was well understood that the prosecution did not have to prove that handlers were not thieves. (2) There are cases where it is appropriate to withdraw a count or charge of handling when both theft and handling are charged. This was not such a case. There was sufficient evidence to support a prima facie case on each charge and it was for the justices to decide on the basis of their assessment of the witnesses and the inferences they were prepared to draw if either charge were made out. R v Fernandez [1997] 1 Cr App R 123 (CA)

1996 ◽  
pp. 1153-1157
Keyword(s):  
Prima Facie ◽  
Sufficient Evidence ◽  
Prima Facie Case ◽  
House Of Lords

The Moral and Economic Case for Free Trade

2018 ◽  
Author(s):  
Bas van der Vossen ◽  
Jason Brennan
Keyword(s):  
Free Trade ◽  
Burden Of Proof ◽  
Economic Models ◽  
Prima Facie ◽  
Trade Restrictions ◽  
Prima Facie Case ◽  
Domestic Trade

The chapter makes a prima facie case for free trade. It argues that the case for international free trade is just as strong as the case for free domestic trade. This case is strong because trade restrictions involve coercively interfering with people’s freedom to interact on mutually acceptable grounds; such restrictions generally stand in need of justification. Second, there also exists a strong economic case for free trade. Standard economic models and history suggest that freeing up trade strongly benefits both buyers and sellers, irrespective of where they live. The chapter concludes that even though it does not offer a conclusive case for free trade by itself, the burden of proof squarely lies with those who would defend trade restrictions.

Refuse as a Fuel: First Paper: Municipal Refuse as a Fuel

1968 ◽  
Vol 183 (1) ◽  
pp. 519-526 ◽  
Author(s):  
R. H. Watson ◽  
J. M. Burnett
Keyword(s):  
Flue Gas ◽  
Prima Facie ◽  
Qualitative Information ◽  
Short Term ◽  
Prima Facie Case ◽  
Heterogeneous Nature ◽  
Heat Recuperation ◽  
Municipal Refuse ◽  
Domestic Refuse

Quantitative and qualitative information on domestic refuse as a fuel is given; attention is drawn to its heterogeneous nature and variability in properties both short term and long term. Modern equipment for incineration is referred to and particular reference is made to the associated aspects of flue gas attemperation and chimney emissions. Potential usage of the heat produced by incineration in boiler or other heat exchanging plant is discussed in terms of functional considerations and economics; in Appendix 1 a more detailed study of the economics of generation of electricity is made. It is concluded that there is no prima facie case for heat recuperation of all incinerators and in the present circumstances each case must be examined on its merits.

Sign in / Sign up

Export Citation Format

Share Document