Part IV Separation of Powers, Ch.23 Tribunals

2016 ◽  
Author(s):  
Thiruvengadam Arun K
Keyword(s):  
Legal System ◽  
Separation Of Powers ◽  
Company Law ◽  
Historical Background ◽  
Law Reform ◽  
Recent Criticism ◽  
Committee Report ◽  
Law And Policy ◽  
The Creation ◽  
The Law

This chapter examines the constitutional status of tribunals in India and how the law and policy on tribunals have evolved since 1950. It presents a brief historical background on the evolution of tribunals in India, starting from the origin of tribunals and debates among law reform bodies from 1950 to 1975 to the Swaran Singh Committee report recommending the creation of tribunals to combat delays in the Indian legal system. It then reviews constitutional litigation over tribunals during the period 1985–2014, focusing on the Sampath Kumar and other cases after it, along with the National Company Law Tribunals. It also considers the debate over the ‘tribunalisation’ of the Indian legal system and the constitutional arguments that have been raised to challenge the validity of particular tribunals. Finally, it looks at recent criticism of the growth of tribunals by practicing lawyers and argues that calls for their abolition are impractical.

(Dis)solving the Chronological Paradox in Customary International Law: A Hartian Approach

2008 ◽  
Vol 21 (1) ◽  
pp. 129-148 ◽  
Author(s):  
David Lefkowitz
Keyword(s):  
International Law ◽  
Legal System ◽  
Resolution Function ◽  
Customary International Law ◽  
International Legal System ◽  
The Creation ◽  
The Law ◽  
Normative Standard

As traditionally conceived, the creation of a new rule of customary international law requires that states believe the law to already require the conduct specified in the rule. Distinguishing the process whereby a customary rule comes to exist from the process whereby that customary rule becomes law dissolves this chronological paradox. Creation of a customary rule requires only that states come to believe that there exists a normative standard to which they ought to adhere, not that this standard is law. What makes the customary rule law is adherence by officials in the international legal system to a rule of recognition that treats custom as a source of valid law. Confusion over this distinction arises because in the international legal system the same agents whose beliefs give rise to a customary rule are the legal officials whose adherence to the rule of recognition leads them to deem that rule legally valid. The proposed solution to the chronological paradox employs H.L.A. Hart’s analysis of the concepts of law and a legal system, and in particular, the idea of a rule of recognition. Yet Hart famously denies the existence of a rule of recognition for international law. Hart’s denial rests on a failure to distinguish between the ontological and authoritative resolution functions of a rule of recognition, however. Once such a distinction is drawn, it can be argued that customary international law rests on a rule of recognition that serves the ontological function of making customary norms legal, though not the authoritative resolution function of settling disputes over the alleged legality of particular norms.

scholarly journals “University Law Clinics and their value in undertaking client-centred law reform to provide a voice for clients’ experiences”

2014 ◽  
Vol 12 ◽  
pp. 105 ◽  
Author(s):  
Liz Curran
Keyword(s):  
Legal System ◽  
Work Experience ◽  
Policy Development ◽  
Clinical Work ◽  
Law Reform ◽  
Public Confidence ◽  
Court Cases ◽  
Clinical Program ◽  
Case Work ◽  
The Law

<p>This article examines how a clinical program can enlarge on the benefits of case work experience of enabling students by adding a course component which engages the students in identifying systemic issues in their case work which can be used to inform work on law reform issues as part of assessment in the clinical programs. The clinical program discussed in this article, demonstrates that assessment can be broadened to enable students to critique the contexts within which client issues emerge. The added component to student case work requires students to develop and use further skills in research, analysis and the evaluation of issues emerging from case work and suggest considered solutions to improve the operation of the legal system. My experience of such an approach is that it deepens students understanding not just of the law and how it is applied to their case work but also the mechanics of the law, how laws are made and how they are influenced. Student lawyers also see the important role of lawyers as members of a profession in ensuring the legal system retains public confidence. A side effect of this extension of the clinical work beyond only client work, is that students become motivated and are more employable (as they leave the course not only with skills in interviewing, communicating, letter writing, applying the law and preparing court cases) with skills in policy development and submission writing.</p>

7. Creditors

2020 ◽  
pp. 223-260
Author(s):  
Paul Davies
Keyword(s):  
Limited Liability ◽  
Creditor Protection ◽  
Company Law ◽  
Going Concern ◽  
Wrongful Trading ◽  
Ex Ante ◽  
Mandatory Rules ◽  
The Creation ◽  
The Law

Because of limited liability, creditor protection has always been a feature of company law. Large creditors can contract ex ante for customised protection and the law facilitates this in various ways, notably by the creation of the floating charge. Non-adjusting creditors require the protection of mandatory rules, at least in some situations. Creditor protection in relation to companies in the vicinity of insolvency is now well established, not only through ‘wrongful trading’ but also via transaction invalidity rules and directors’ disqualification. For going-concern companies the emphasis is on rules restricting the shifting assets to shareholders via distributions and associated rules relating to the maintenance of capital.

The Mid-Victorian Reform of Britain’s Company Laws and the Moral Economy of Fair Competition

2020 ◽  
pp. 1-37
Author(s):  
DAVID CHAN SMITH
Keyword(s):  
Driving Force ◽  
Moral Economy ◽  
Company Law ◽  
Law Reform ◽  
Level Playing Field ◽  
Playing Field ◽  
Fair Competition ◽  
Company Law Reform ◽  
History Of ◽  
The Law

This paper reconstructs the history of the reform of Britain’s company laws during the 1850s and makes three major arguments. First, the Law Amendment Society was the driving force for reform and organized the campaign for change. Second, the advancement of working-class interests and ideas of fairness were central to the conceptualization of these reforms and the course of their advocacy. Company law reform was broadly conceived to include the revision of the law of partnership, corporations, and cooperatives to create a level playing field in which smaller entrepreneurs could compete against established capitalists. Finally, central to this campaign was the institutional logic of “fair competition.” Socialists and liberals both used this logic, demonstrating how moral ideas can shape organizational change.

scholarly journals La problemática derivada del reconocimiento de los efectos del contrato de gestación subrogada desde la perspectiva del Derecho del trabajo y de la Seguridad Social = The problem derived from recognizing the effects of gestation contract subrogated from the perspective of labor law and social security

2019 ◽  
Vol 11 (2) ◽  
pp. 348
Author(s):  
David Tomás Mataix
Keyword(s):  
Social Security ◽  
Legal System ◽  
Labor Law ◽  
Social Rights ◽  
Surrogate Motherhood ◽  
New Family ◽  
The Creation ◽  
The Law

Resumen: El contrato de gestación subrogada es nulo de pleno derecho en España por ser clara­mente contrario a los principios más esenciales de nuestro ordenamiento jurídico, siendo tal consecuen­cia expresada en la Ley 14/2006, de 26 de mayo. Pese a ello, de su celebración derivan una serie de efectos en el ámbito del Derecho del Trabajo y de la Seguridad Social, surgidos a partir de la creación de una nueva realidad familiar resultada del nacimiento de un menor de edad.Palabras clave: maternidad subrogada, nulidad, derechos sociales, Seguridad Social, interés su­perior del menor.Abstract: The surrogate motherhood contract is declared invalid in Spain because it is clearly con­trary to the most essential principles of our legal system, this being expressed by the Law 14/2016, 26th of May. However, a series of effects derive from the celebration in the field of Labor and Social Security Law, arising from the creation of a new family reality resulting from the birth of a minor.Keywords: surrogate motherhood, nullity, social security, social rights, children´s interest.

scholarly journals Stosowanie przepisów o służebności przesyłu jako przykład prawa „stanu wyjątkowego”

2019 ◽  
pp. 5-14
Author(s):  
Arkadiusz Barut
Keyword(s):  
Separation Of Powers ◽  
Judith Butler ◽  
Case Law ◽  
Social Consequences ◽  
Pure Form ◽  
State Of Exception ◽  
Legal Rights ◽  
Legal Norms ◽  
The Creation ◽  
The Law

The subject of the article is an analysis of civil courts’ case law in terms formulated by Giorgio Agamben and Judith Butler, that is, in terms of law as a ‘state of exception’, a purely arbitrary practice that appears to be a parody of law. The author indicates aspects of such ‘law’: the blurring of the boundaries between the law and purely factual activities (in Agamben’s terminology: ‘life’), which may take the form of violence that no longer cares for its legitimacy or which reduces the law to ‘pure form’, that is, the creation and application of rules completely in abstract from their ethical evaluation and social consequences. In Foucault’s terminology, both these processes can be represented as a rebirth of sovereignty in the field of governmentality, the parody of the law being justified by the needs of population management, but in reality it is the result of a power’s strive for self-preservation. There are, as Butler defines, petty sovereigns who allegedly only quasi-technically apply the law articulated in full in the statute, and in fact act fully arbitrarily. One of their methods is to simulate the creation or application of law by taking away a particular meaning from words, in particular from legal concepts. The result is a departure from the idea of separation of powers and the postulate of empowerment of the addressee of legal norms, sometimes preserving the fiction of the latter’s agency as a kind of Agamben’s ‘pure form of law’. The author states that an example of such a process is the case law of the Polish Supreme Court and general courts regarding the possibility of acquisitive prescription of transmission easement by transmission companies. He indicates that the position that won in this case law completely deviates from the contents of the statute and the well-established understanding of civil law concepts, with the result of depriving property owners of their legal rights.

scholarly journals The Influence Of The Constitutional Court Decision Against Combating Money Laundering In The Context Of Criminal Law Reform

2016 ◽  
Vol 1 (2) ◽  
pp. 99
Author(s):  
Somawijaya ◽  
Ajie Ramdan
Keyword(s):  
Money Laundering ◽  
Criminal Law ◽  
Legal System ◽  
Criminal Procedure ◽  
Court Decision ◽  
Law Reform ◽  
Constitutional Court ◽  
The Law

According to Moeljatno, Criminal Law is a part of a country’s legal system that prohibits certain acts with the threat of sanction for those who break said laws, determines when and in what cases such punishments should be imposed upon those who commit said acts and determines precisely how punishments should be carried out in the event that a person is accused of such acts. This paper will analyse Constitutional Court Decision No. 77/PUU-XII/2014 and Decision No. 21/PUU-XII/2014 regarding Criminal Law reform. Looking to the theory of procedural criminal law, an indictment of cumulative charges of money laundering requires that the underlying predicate offences be proven. If, for example, the predicate offence is corruption, the corruption must be proven as multiple crimes have been committed by the same suspect, namely corruption leading to money laundering. the Decision of  the Pretrial Judge of  the Court    of South Jakarta, Sarpin Rizaldi, and Constitution Court Decision No. 21/PUU- XII/2014 on the review of Article 77 of Act No. 8 Year 1981 concerning the Law of Criminal Procedure broadened the range of pretrial objects and greatly affected the principles of  formal criminal law.

scholarly journals The Role of Law in Creating Different Policies in Iran's Court of Justice and Punitive Court

2020 ◽  
Vol 38 (Especial) ◽  
pp. 502-510
Author(s):  
Mohieddin Mohammadi ◽  
Garnik Safariani
Keyword(s):  
Legal System ◽  
Criminal Courts ◽  
Court Of Justice ◽  
Political Forces ◽  
The Creation ◽  
The Law ◽  
The Right ◽  
Short Time ◽  
Legal Procedures

The principle of respecting the separation of political forces in a society gives the legal system the right to issue orders on people's complaints based on the laws approved by the legislative power. There is no question that laws, like other man-made things, have shortcomings. These decisions include the rupture and even the conflict between two or more articles of the law that provoke the creation of different policies in the court of justice and the punitive court of Iran. With a documentary methodology, this article attempts to study the conflicts between different punitive laws and their effect on the creation of different policies in the courts of Iran. It is concluded that, in many cases, due to different reasons there may be defects in the law or in the interpretation of the law that generate defect, ambiguity, clash between laws and contradiction. The existence of all these failures in different cases will cause conflicts between the judges of the criminal courts and these conflicts are the source of the creation of different legal procedures in the criminal courts and in the short time analyzed.

scholarly journals Development of Company Law in Kazakhstan: Main Issues and Trends

2016 ◽  
Vol 24 ◽  
pp. 84 ◽  
Author(s):  
Farkhad Karagussov
Keyword(s):  
Legal System ◽  
Economic Activity ◽  
Corporate Law ◽  
Company Law ◽  
Entrepreneurial Activity ◽  
Current Structure ◽  
Commercial Activities ◽  
Legal Term ◽  
National Legal System ◽  
The Law

The article shows that special legislation to regulate corporate forms for entrepreneurial activity (apart from forms for non-commercial activities) has been developed in Kazakhstan since the 1990s. The most important stages in such development are highlighted, with special emphasis on the influence of Russian legal developments. The article includes description of the current structure, content, and specifics of Kazakhstan’s legislation on corporate forms for economic activity. The absence of a clear concept of company law and of a legal term ‘corporation’ in the law of Kazakhstan is noted in the paper, and also it is argued that a body of company law (or corporate law) of Kazakhstan has not been adequately institutionalised yet within the national legal system. The author identifies the main trends in the development of company/corporate law in Kazakhstan and key concerns related to it.

scholarly journals The New Legal Regime on Minority Shareholder Protection in Albania

2012 ◽  
Vol 5 ◽  
Author(s):  
Jonida Rustemaj
Keyword(s):  
Legal System ◽  
Comparative Method ◽  
Minority Shareholder ◽  
Company Law ◽  
Minority Shareholders ◽  
Legal Regime ◽  
Commercial Law ◽  
Shareholder Protection ◽  
Minority Shareholder Protection ◽  
The Law

This article aims at introducing the main changes brought by the new Albanian Company Law on minority shareholders’ protection. Due to the harmonization of our legislation with the acqui, new pieces of laws were introduced in commercial law. In 2008 the new law “On entrepreneurs and commercial companies” was enacted. The latter introduced new practices and concepts, some of them not familiar to the Albanian legal system. I was motivated to write a paper on minority shareholders protection in order to emphasize the new regime and instruments of protection granted by the new laws. A matter which concerns investors and especially foreign ones is the protection of minority shareholders. This paper discusses the instruments of protection of minority shareholders bringing the novelties of the newly introduced laws because of the unclear regime under the repealed law using the analytical and comparative method. Few rights which were known by the former Albanian company law were usually compromised, but under the law in force, minorities are much more protected.Does the new law strengthen the position of such category of shareholders? What are the rights of minority shareholders conferred by the law? These and other questions will be addressed herein.

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