My business is your business: the Court of Appeal’s decision in MN v OP

2019 ◽  
Vol 25 (7) ◽  
pp. 753-757
Author(s):  
Thomas Fletcher
Keyword(s):  
Legal Framework ◽  
Civil Procedure ◽  
Court Of Appeal ◽  
Made In

Abstract This article considers the decision of the Court of Appeal in England in MN v OP [2019] EWCA Civ 679 on the circumstances in which an anonymity order will be made in connection with an application under the Variation of Trusts Act 1958. It looks at the legal framework for the decision, in particular the basis for the contention that an analogy should be drawn with proceedings under Rule 21.10 of the Civil Procedure Rules, with the result that anonymity orders should be the norm. It then sets out the conclusion and reasoning of the Court of Appeal and provides some commentary on the possible ramifications of the decision for practitioners in England and other jurisdictions.

scholarly journals Conciliar no Tribunal é possível? Uma análise da experiência do Tribunal de Justiça do Estado do Rio Grande do Norte

2020 ◽  
pp. 172-193
Author(s):  
Elias Jacob de Menezes Neto ◽  
Igor Da Silva Gomes
Keyword(s):  
Conflict Resolution ◽  
Rio Grande ◽  
Legal Framework ◽  
Civil Procedure ◽  
The State ◽  
National Council ◽  
Important Landmark ◽  
Court Of Appeal ◽  
Positive Results ◽  
Do So

RESUMOA Resolução nº 125/2010 do Conselho Nacional de Justiça foi um marco importante para a criação de políticas públicas de resolução adequada dos conflitos, o que foi ampliado pela entrada em vigor do Código de Processo Civil de 2015. Nesse contexto, o presente artigo busca compreender a viabilidade das práticas conciliatórias no 2º grau de jurisdição. Para tanto, realiza, a partir da metodologia de estudo de caso, uma análise da experiência do TJRN, especificamente do seu Núcleo de Conciliação. Utiliza dados do próprio órgão sobre as audiências, limitando o escopo aos anos de 2016 e 2017. Procede, ainda, com análise doutrinária e legislativa, sendo o estudo de relevância para exteriorizar a efetividade (ou não) do método consensual de resolução de disputas. Conclui-se que o TJRN tem trazido resultados positivos, chegando, no ano de 2017, ao índice de êxito de 34% no Núcleo de Conciliação e 1,6% no Tribunal como um todo, números acima da média nacional.PALAVRAS-CHAVEConciliação. Tribunal de Justiça do Rio Grande do Norte. Políticas Públicas de Resolução de Conflitos. ABSTRACTThe CNJ’s (Brazilian National Council of Justice) Resolution nº 125/2010 was an important landmark for create public policies for the adequate resolution of conflicts, which was amplified after the Brazilian Code of Civil Procedure of 2015. This research aims to understand if it’s possible to use conciliation in Courts of Appeal. In order to do so, it analyses data from conciliation sessions held at the TJRN/NC (Conciliation Chamber of the Courts of Appeal at the state of Rio Grande do Norte/Brazil) between 2016 and 2017. In addition, it analyses the current theoretical and legal framework on conflict resolution. It concludes that TJRN has been achieving positive results, reaching, in 2017, a successful rate of 34% at the TJRN/NC and of 1.6% on all Court levels, numbers above the national average.KEYWORDSConciliation. Court of Appeal of Rio Grande do Norte.

scholarly journals CPR Pt 36—Enhanced Interest Should Not Function as Punitive Damages for Malicious Defence

2019 ◽  
Author(s):  
Vaclav Janecek
Keyword(s):  
Interest Rate ◽  
Common Law ◽  
Civil Procedure ◽  
Punitive Damages ◽  
The Future ◽  
Court Of Appeal ◽  
Made In

This note critically comments on the Court of Appeal’s decision in OMV Petrom SA v Glencore International AG. By introducing a penal element to the enhanced interest rate pursuant to CPR Pt 36, the Court of Appeal has extended the justificatory reasons for those awards beyond compensation. This note argues that Petrom-like awards should not be ordered in the future and that the Civil Procedure Rule Committee should amend the CPR accordingly. One issue is that the Petrom award was based on analogical application of the CPR, which implies that the Court of Appeal’s reasoning was in fact not governed by CPR Pt 36. Another issue is that the existing common law principles—as the next best source of law for the Court of Appeal’s decision—do not support the ruling either. This is because, first, the Petrom award was made in respect of the defendant’s malicious defence even though malicious defence does not constitute a common law tort. Secondly, the penal element in Petrom functioned as punitive damages even though the existing common law principles regarding punitive damages prevent courts from making such awards in similar cases.

APPEAL PROCEEDINGS: HISTORY, THEORY, PRACTICE

2021 ◽  
Vol 11 (5) ◽  
pp. 107-139
Author(s):  
E.A. BORISOVA
Keyword(s):  
Civil Procedure ◽  
Appellate Court ◽  
Judicial Reform ◽  
Procedural Law ◽  
Judicial Practice ◽  
Procedure Code ◽  
Complex Approach ◽  
The Russian Federation ◽  
Court Of Appeal ◽  
Made In

History, theory, and court practice are the basis of judicial reform. If the Civil Procedure Code of the Russian Federation was created considering this with, but subsequent changes of the procedural law show the opposite. Changes of procedure in the appellate court are not an exception, and that is why for the last 10 years theoretical and practical problems of appeal proceedings have existed. The article aims to draw attention to the reasons of occurrence of these problems; mistakes made in the course of its solution; ways of error correction with due regard for experience of Russian civil procedure, achievements of the civil procedure doctrine, needs of Russian judicial practice; necessity of complex approach in reforming proceedings in the court of appeal instance.

scholarly journals KETIKA TERMOHON MENOLAK TERLIBAT DALAM PERSIDANGAN ARBITRASE

2020 ◽  
Vol 3 (2) ◽  
pp. 126
Author(s):  
Garuda Wiko
Keyword(s):  
Quality Assurance ◽  
Legal Framework ◽  
Civil Procedure ◽  
Trial Process ◽  
Procedure Code ◽  
Arbitration Process ◽  
Made In

Although arbitration has been made based on the agreement of the parties and stated in writing in the Main Contract, this does not guarantee that the parties will immediately be willing to participate in the arbitration process when a dispute occurs. It is possible that one of the arbitration parties was absent and was not willing to be involved in the trial process. In very rare circumstances, the arbitration applicant may cancel / deny his participation in the trial process. This article will describe the regulations, practices and expert views in the implementation of the arbitration proceedings without the presence of the respondent. It is expected that from this research, an overview will be obtained in carrying out the arbitration proceedings without the applicant. The findings obtained are that there are no extensive guidelines in Indonesia that can be used as a guide by the arbitrators in carrying out such a trial process, especially related to proof and examination of cases. Some of the principles and regulations set out in the Civil Procedure Code may be adopted to answer some things that are not regulated in the arbitration legal framework in Indonesia. Efforts should be made to develop a guideline framework for arbitrators so that there are similarities and quality assurance of decisions made in the trial process without the presence of the respondent.Meskipun arbitrase telah dibuat berdasarkan kesepakatan para pihak dan dicantumkan secara tertulis di dalam Kontrak Utamanya, hal ini tidak menjamin bahwa para pihak akan serta merta bersedia untuk berpartisipasi dalam proses arbitrase ketika suatu sengketa terjadi. Ada kemungkinan salah satu pihak arbitrase mangkir dan tidak bersedia terlibat dalam proses persidangan. Dalam kondisi yang sangat jarang, termohon arbitrase dapat membatalkan/mengingkari keikutsertaannya dalam proses persidangan. Artikel ini akan mendeskripsikan regulasi, praktik dan pandangan ahli dalam pelaksanaan proses persidangan arbitrase yang dilakukan tanpa kehadiran termohon. Diharapkan dari penulisan ini didapatkan gambaran terkait proses persidangan arbitrase tanpa pihak termohon. Penemuan yang didapat adalah belum ada pedoman yang ekstensif di Indonesia yang dapat dijadikan pedoman oleh arbiter dalam menjalankan proses persidangan seperti itu terutama terkait dengan pembuktian dan pemeriksaan perkara. Beberapa prinsip dan peraturan yang diatur dalam Hukum Acara Perdata mungkin dapat diadopsi untuk menjawab beberapa hal yang tidak diatur di dalam kerangka hukum arbitrase di Indonesia. Perlu adanya upaya untuk mengembangkan suatu kerangka pedoman bagi para arbiter agar terdapat kesamaan dan penjaminan kualitas terhadap putusan-putusan yang dibuat dalam proses persidangan tanpa kehadiran termohon.

Udział biegłego w postępowaniu egzekucyjnym w sytuacji określonej w art . 853 k.p.c.– zagadnienia wybrane w ujęciu historycznym

2016 ◽  
pp. 117-128
Author(s):  
Monika Dziewulska
Keyword(s):  
Historical Perspective ◽  
Civil Procedure ◽  
Court Expert ◽  
Current Code ◽  
Made In

The author explains the institution of a court expert in enforcement proceedings, describing problems in historical perspective, primarily referring to the regulations contained in the Code of Civil Procedure of 1932. Particular attention is given to the regulations contained in Article 853 of the current Code of Civil Procedure, by submitting proposals under at the legislature for the introduction of the obligation probable allegations made in the complaint to estimate the movables of the debtor or creditor as well as the need for the appointment of an expert by a bailiff if the bailiff does not have knowledge in a particular field and can not independently make estimates.

Psychosoziale Prozessbegleitung im Strafverfahren

2021 ◽  
Author(s):  
Alexander Ilsner
Keyword(s):  
Legal Status ◽  
Legal Framework ◽  
Civil Procedure ◽  
Legal Institution ◽  
Criminal Proceedings ◽  
Legal Innovation ◽  
The Law

The legal status of victims of violent criminality has been in the spotlight during recent decades. The institutionalization of psychosocial assistance in criminal proceedings represents the temporary peak of this development. In this study, the author focuses on the legal innovation, analyzes it fundamentally (especially regarding the recently formulated § 406g StPO), and submits specific reform proposals correspondingly. This research includes four systematically structured chapters, which impart the essential features of the legal institution, elucidate the legal framework, and finally appoint considerations regarding its transfer into the law of civil procedure.

Transforming the Law on Psychiatric Lesions

2021 ◽  
Vol 2021 (2) ◽  
pp. 253-271
Author(s):  
Emile Zitzke
Keyword(s):  
Supreme Court ◽  
Expert Witnesses ◽  
The Supreme Court ◽  
Psychological Harm ◽  
The Law ◽  
Constitutional Right ◽  
Law Of Delict ◽  
Court Of Appeal ◽  
Made In

In this article, I trace the development in the law of delict of recognising general damages claims on account of psychiatric lesions with the aim of making suggestions on how to transform it. Using the tragic case of Michael Komape as a springboard for the discussion, I argue that even though the Supreme Court of Appeal has recently brought clarity on the law on psychiatric lesions, more transformative work still needs to be done. More specifically, this article contends that the constitutional right to bodily and psychological integrity might require us to rethink the high evidentiary threshold that courts have set for proving the element of harm in cases related to psychiatric lesions. I argue that this can be done in at least three ways: First, by very cautiously bringing about a development that would involve protecting victims of psychological harm whose expert witnesses are shown to be inadequate despite all other facts indicating the existence of a psychiatric lesion. Secondly, by lowering the requirement of “recognised psychiatric lesion” to “grievous mental injury”, in line with similar arguments made in England. Thirdly, and most controversially, by acknowledging that perhaps the time has come for our law to recognise claims for so-called “grief in the air”.

scholarly journals MEDICAL AND PROCEDURAL-LEGAL ASPECTS OF INPATIENT AND OUTPATIENT FORENSIC PSYCHIATRIC EXAMINATION

2020 ◽  
Vol 73 (7) ◽  
pp. 1533-1538
Author(s):  
Sandra Kaija ◽  
Inga Kudeikina ◽  
Nataliya Gutorova
Keyword(s):  
Medical Practitioner ◽  
Legal Framework ◽  
Legal Regulation ◽  
Legal Aspects ◽  
Civil Procedure ◽  
Legal Doctrine ◽  
Psychiatric Examination ◽  
Legal Norms ◽  
The Subject ◽  
Forensic Psychiatric

The aim: The aim of the study is to define the legal framework of forensic psychiatric examination commissioned by the court in relation to the competence of medical practitioners and the position of the subject as a patient in the process of forensic psychiatric examination in order to determine the correlation of special legal regulation with criminal and civil procedure regulation and to make proposals for the enhancement of the legal regulation. Materials and methods: This study is based on the analysis of international law, medical civil procedure and criminal procedure legislation, juridical practice, medical law legal doctrine. The following methods were used in this research: the method of interpretation of legal norms, analysis of legal acts, and the induction-deduction method, upon which the conclusions were drawn and recommendations were provided. Conclusion: The current regulatory framework does not provide for the procedure by which the subject’s medical treatment is conducted during forensic psychiatric examination, nor does it determine the criteria for the admissibility of treatment of the persons concerned and the extent of treatment. During the examination, the medical practitioner who is in the expert’s procedural position in relation to the subject under examination in the particular examination should not carry out the treatment of the subject.

scholarly journals Novelties in the Civil Procedure of the Brčko District of Bosnia and Herzegovina

2005 ◽  
Vol 77 (10) ◽  
pp. 558-569
Author(s):  
Ranka Račić
Keyword(s):  
Bosnia And Herzegovina ◽  
Civil Procedure ◽  
Legal Remedies ◽  
The Law ◽  
The Republic ◽  
Court Of First Instance ◽  
Court Of Appeal

Brčko District has its own, special courts, and its own laws, which differ from the laws of the entities. The Law on Civil Procedure of Brčko District of Bosnia and Herzegovina was drafted and influenced by the Law on Civil Procedure of the Republic of Srpska and Law on Civil Procedure of the Federation of Bosnia and Herzegovina. However, the Law on Civil Procedure of Brčko District of Bosnia and Herzegovina has introduced many novelties which arc listed in this paper, through the systematization of the law. Differences are remarkable and consist of different regulation of the procedural efficiency, introduction of the court of appeal, different regulation of principles of discussion and investigation, incorporation of the trial before one judge in the court of first instance, lack of the court's obligation to teach ignorant party. There are major discrepancies in the preparation of main hearings and main hearings, in the mediation procedure and structure and nature of the legal remedies.

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