scholarly journals REIMBURSEMENT OF EXPENSES FOR PROFESSIONAL LEGAL AID IN THE CIVIL JUDICIARY OF UKRAINE: PROBLEMS OF LAW ENFORCEMENT

2021 ◽  
pp. 102-108
Author(s):  
O. Ugrunovska ◽  
◽  
V. Sichka ◽  
Keyword(s):  
Case Law ◽  
Point Of View ◽  
Court Case ◽  
Legal Assistance ◽  
Preliminary Calculation ◽  
Civil Proceedings ◽  
The Supreme Court ◽  
Evaluation Of Evidence ◽  
The Cost ◽  
Constituent Elements

The article investigates the institute of reimbursement of expenses for professional legal assistance in civil proceedings of Ukraine from the point of view of completeness of its regulation in normative-legal acts of Ukraine. Within the framework of this work, the authors analyze all the constituent elements of successful reimbursement of the costs of professional legal assistance, highlight their features and analyze the practice of the Supreme Court on this issue. Taking into account the case law, the criteria for determining the amount of costs for professional legal assistance in civil proceedings in Ukraine are disclosed. Some features of reimbursement of the success fee, reduction of the costs of professional legal assistance and their distribution based on the results of the case are analyzed. Thus, attention is drawn to the fact that the success fee is reimbursable subject to compliance with the criteria of proportionality in determining its size. Based on the results of the study, it was concluded that in order to reduce the cost of professional legal assistance, it is necessary for the other party to apply for a reduction in their size, and for a guaranteed distribution, a preliminary calculation of such costs must be submitted. An opinion was formulated on the role and place of the court in reducing and allocating the costs of professional legal assistance, particular attention was drawn to the fact that during this process the court should act exclusively as an independent arbitrator. Particular attention is paid to the process of proving and documenting the costs of professional legal assistance in a particular court case. The position of courts on the evaluation of evidence on the availability of costs for professional legal assistance in each case is highlighted.

INTER ARMA SILENT LEGES (NOTAS SOBRE DEL DERECHO DE EXCEPCIÓN)

2010 ◽  
pp. 285-294
Author(s):  
JOSÉ MANUEL CASTELLS ARTECHE
Keyword(s):  
Rule Of Law ◽  
United States Supreme Court ◽  
Case Law ◽  
Point Of View ◽  
Court Case ◽  
The Rule Of Law ◽  
Current Economic Crisis ◽  
Supreme Court Case ◽  
Emergency Measures ◽  
Structural Point

Se hace notar que en situaciones de excepción, sea en un aspecto coyuntural (la actual crisis económica), sea estructural (las medidas de emergencia justificadas en razones de necesidad), se afecta normalmente aunque no necesariamente a los principios propios de un Estado de Derecho. Se aportan ejemplos de la realidad actual o de momentos claves de la jurisprudencia del Tribunal Supremo de los Estados Unidos de Norteamérica. Salbuespeneko egoeretan, dela egoera koiunturala (egungo krisi ekonomikoa), dela egiturazkoa (premiagatik justifikatuta dauden larrialdiko neurriak), gehienetan, baina ez beti, Zuzenbide Estatutuaren printzipio funtsezkoetara jotzen da. Ameriketako Estatu Batuetako Epaitegi Gorenaren jurisprudentziaren gaur egungo errealitatearen edo une gailurren adibideak aztertzen dira. It is pointed out that in exceptional circumstances, either from a temporary point of view (current economic crisis) or from a structural point of view (emergency measures justified by reasons of necessity), is normally affected albeit not necessarily the same principles of the Rule of Law. Some current real examples or key moments in United States¿ Supreme Court case law are provided.

REFUSAL TO RECOGNIZE AND GRANT PERMISSION TO ENFORCE INTERNATIONAL COMMERCIAL ARBITRATION AWARDS DUE TO IMPROPER NOTIFICATION ABOUT ARBITRATION PROCEEDINGS

2017 ◽  
Author(s):  
Anayit Khoperiya ◽  
Keyword(s):  
Supreme Court ◽  
Hague Convention ◽  
Case Law ◽  
Legal Assistance ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Negative Case ◽  
The Supreme Court ◽  
The Hague ◽  
The Hague Convention

The article analyses the refusal to recognize and grant permission to enforce awards of international commercial arbitration because of improper notification about the arbitration. The study concerns the new case law of the Supreme Court in cases of recognition and granting permission to enforce the awards of international commercial arbitration in cases where the party against whom the decision is made denies that it has been notified of the arbitration or appointment of an arbitrator. Particular attention was paid to the analysis of the decisions of the Supreme Court in cases No. 824/26/19 of November 28, 2019 and No. 824/69/19 of February 13, 2020 on the application of Jurginsky Mashzavod LLC on the enforcing of the decision of the Arbitration Court at the Chamber of Commerce and Industry of the Russian Federation on debt collection from PJSC Pokrovske Mine Management. These decisions were assessed as a negative case law that does not contribute to the development of arbitration in Ukraine. It was concluded that in cases No. 824/26/19 and No. 824/69/19 the Supreme Court formulated two extremely negative opinions for the development of international commercial arbitration: 1) the need to inform the different jurisdictions parties of the arbitration proceedings, where in these jurisdictions the Hague Convention is binding, in form of provision of international legal assistance, which would harm the pace of arbitration proceedings; 2) the necessity to notify the parties by arbitration via mail with a postal description of the enclosed documents. The provisions of the Hague Convention regarding the requirement of arbitration notifications of the parties on the implementation of arbitration proceedings using the procedure of international legal assistance were analysed. It was established that the provisions of this convention cannot be interpreted as establishing an obligation for arbitration tribunals to notify the parties of the arbitration proceedings, which are situated in states-parties to this convention, through the procedure of international legal assistance only. The practice of the Supreme Court in other cases on the recognition and granting permission to enforce of international commercial arbitration decisions, where the party against which the decision was made denies that it has been notified about the arbitration or appointment of an arbitrator, was positively assessed. This practice is pro-arbitration. It was emphasized the importance of forming pro-arbitration practice of the Supreme Court, which ensures the image of Ukraine as a friendly jurisdiction for arbitration and for investment accordingly.

Some New Emphases in Extradition Case Law

1981 ◽  
Vol 16 (2) ◽  
pp. 204-224 ◽  
Author(s):  
S.Z. Feller
Keyword(s):  
Supreme Court ◽  
Case Law ◽  
Point Of View ◽  
District Court ◽  
The Supreme Court ◽  
The Subject ◽  
State Of Israel

In Azen v. State of Israel, the Supreme Court heard the appeal of a person who had been declared extraditable to France for offences of stealing by an agent and fraud, committed, according to the request for extradition, in France. One of the pleas raised against the decision of the District Court, in which Azen was declared extraditable, was that the specialty limitation was not guaranteed in the Extradition Treaty between Israel and France, as required by sec. 17 (a) of the Israeli Extradition Law, 1954. This section states unequivocally that —A wanted person shall not be extradited unless it has been ensured, by an agreement with the requesting State, that he will not be detained, tried or punished in that State for another offence committed prior to his extradition;whereas in art. 17 of the said Treaty, specialty is guaranteed in the following words: L'individu qui aura été délivré ne pourra ni être poursuivi ou jugé en sa présence ni être, détenu …i.e. under the Treaty, the specialty limitation is restricted, from the procedural point of view, to those processes involving physical, personal enforcement against the subject of extradition—he will not be “summoned” for interrogation, nor judged “in his presence”, nor “detained”; the Extradition Law, however, contains no such restriction, with the exception of detention which, by its very nature, requires physical enforcement.

scholarly journals La filiación internacional a examen por el Tribunal Supremo. A propósito de las sentencias TS 223 y 224 de 17 de abril de 2018 = International declaration of parentage before the Supreme Court. Supreme Court case Law Nº 223 and 224, 17th April 2018

2019 ◽  
Vol 11 (2) ◽  
pp. 624
Author(s):  
Mónica Guzmán Zapater
Keyword(s):  
Supreme Court ◽  
Ad Hoc ◽  
Case Law ◽  
Court Case ◽  
International Jurisdiction ◽  
Applicable Law ◽  
Time Element ◽  
The Supreme Court ◽  
Supreme Court Case ◽  
Conflict Of Law

Resumen: Dos Sentencias del TS de 2018 abordan el problema de la sucesión de normas de competencia judicial y norma de conflicto en procesos de filiación. En atención a los valores que presiden la materia se decantan soluciones ad hoc sin proclamarla aplicación retroactiva de las nuevas normas en la materia.Palabras clave: filiación, competencia judicial internacional, ley aplicable, elemento temporal de las normas de conflicto, valores y objetivos en presencia, otras cuestiones.Abstract: In two cases Spanish Supreme Court goes through the question of temporary application of new rules on jurisdiction and applicable law in ascertainment filiation actions. Taking into account interest and values on filiation actions finally establishes ad hoc solutions in each case avoiding a formal declaration on it´s retroactive consequences.Keywords: filiation, international jurisdiction, applicable law, time element in conflict of law rules, values and objectives, other questions.

scholarly journals Soberanía y democracia en el discurso europeo del Tribunal Constitucional alemán : ¿una nueva defensa ad extra de la democracia? = Sovereignty and democracy in the european speech of the Constitutional German Court

2013 ◽  
pp. 259
Author(s):  
Leonardo Álvarez Álvarez
Keyword(s):  
Political Identity ◽  
Case Law ◽  
Point Of View ◽  
Court Case ◽  
Constitutional Court ◽  
Federal Constitutional ◽  
Definition Of ◽  
Constitutional Tradition ◽  
German Federal Constitutional Court ◽  
German Federal Constitutional

Este trabajo se ha propuesto analizar la jurisprudencia del Tribunal Constitucional Federal alemán sobre al proceso de integración europeo. Las categorías de soberanía y democracia, los dos pilares en los que se ha apoyado tradicionalmente su argumentación, se han concebido como cualidades de un ordenamiento nacional. Por ello, la naturaleza, las funciones y límites de la UE se han definido por el Tribunal Constitucional Federal a partir de categorías de derecho interno. Este trabajo ha tratado de demostrar cómo desde la Sentencia sobre el Tratado de Lisboa (2009), se han parecido sentar las bases para definir los conceptos soberanía y democracia, a partir de la tradición constitucional común de los Estados miembros. En definitiva, de lo que modernas escuelas de pensamiento científico denominan un iuspublicum europaeum. Esta transformación metodológica se lleva cabo por el Tribunal Constitucional Federal alemán retornando a la concepción material de democracia presente en su jurisprudencia de los años 50 y 60. Si esta sirvió entonces para construir una democracia militante ad intra frente a los enemigos de la democracia, es posible que pueda servir también ahora para la defensa militante ad extra de la democracia. El respeto de la identidad política alemana impuesta a la UE en la Sentencia Lisboa puede hablar a favor de ello.This paper analyzes the German Federal Constitutional Court case-law about the European integration process. Both concepts of sovereignty and democracy, base of its reasoning, have been constructed as related to a national legal system. Therefore, the nature, functions and limits of the EU has been determined by the BVerfG in relation to state categories. This paper tries to show how since Lisbon’s ruling (2009), the bases for a definition of sovereignty and democracy from the point of view of the common constitutional tradition of Member States may have been established. That’s to say, what modern Schools for Scientific Thought call iuspublicum europaeum. The German Federal Constitutional Court makes this methodological transformation returning to the material concept of democracy established during the 50’s and 60’s. If it was then used in order to construct a militant democracy ad intra against the enemies of democracy, it may be now used to the militant defense ad extra of democracy. The respect for German political identity imposed by Lisbon’s ruling supports this idea.

The ‘Range of Reasonable Responses’ Test: A Poor Substitution for the Statutory Language

2020 ◽  
Author(s):  
Aaron Baker
Keyword(s):  
Supreme Court ◽  
Special Kind ◽  
Case Law ◽  
Court Case ◽  
Unfair Dismissal ◽  
The Supreme Court ◽  
Lower Courts ◽  
Borough Council ◽  
Supreme Court Case ◽  
As If

Abstract The ‘range of reasonable responses’ (RORR) test for assessing the fairness of a dismissal under section 98(4) ERA 1996 started life as a mistake and never recovered. Where the statute tells judges a dismissal is unfair if an employer acted ‘unreasonably’, the RORR tells them this refers to a special kind of ‘employer reasonableness’. In a setting where the only question is whether a dismissal is too harsh or not it is senseless to ask anyone, including a judge, to behave as if a dismissal they consider too harsh is nevertheless not too harsh. Yet this is what the RORR has always asked Employment Tribunal judges to do, with predictable results. Because they are told that they may not use their own idea of what counts as reasonable, they have no choice but to assume that ‘employer reasonableness’ tolerates more harshness than ‘reasonableness’. Lady Hale, possibly viewing the matter in the same light, appears to have invited a Supreme Court challenge to the RORR in Reilly v Sandwell Metropolitan Borough Council. This article argues that the Supreme Court must do away with the RORR because it artificially makes it harder to succeed in an unfair dismissal claim, it is doctrinally confused, and incremental efforts by the lower courts to resolve these problems within the RORR framework inevitably fail. The answer must involve distinguishing between a ‘standard for decision’ and a ‘standard of review’. The RORR tried to perform both functions by distorting the standard for decision to address standard of review concerns. Recent Supreme Court case law on proportionality, however, has made it clear this is the wrong approach. What the Court should install, in place of the RORR, is (a) a clear standard for decision, not subject to modification over standard of review concerns, and (b) targeted guidance about how tribunals should focus their inquiry and where to give deference to employers.

scholarly journals Personalna subrogacija u odnosu prema pravu regresa osiguratelja i ustupanju tražbine – cesiji

2021 ◽  
Vol 11 (1) ◽  
pp. 79-90
Author(s):  
Jadranka Nižić-Peroš
Keyword(s):  
Case Law ◽  
Point Of View ◽  
Civil Proceedings ◽  
Legal Position ◽  
The Subject ◽  
Injured Party ◽  
Court Proceedings ◽  
The Right ◽  
Court Expert ◽  
Insurance Compensation

The subject of this paper is a review of legislation and case law regarding personal subrogation, recourse obligation and recourse claim of the insurer for payment of insurance compensation as well as determining the amount of payment of recourse claim in civil proceedings before the court and assignment of the claim - cession. The paper starts from the point of view that the terms and institutes of subrogation, recourse and cession are very similar and that they are often identified, so we try to clearly distinguish what exactly the term refers to. In Croatian law, the right of subrogation of the insurer is most often understood as legal personal subrogation where by paying the insurance compensation the insurer assumes the legal position of its insured and consequently enabling the insurer to claim damages against the responsible person . In addition to the above, the paper also considers the statute of limitations for insurers’ recourse rights. Furthermore, the author starts from the point of view that in court proceedings initiated for recourse payment it is necessary for the court expert to clearly determine the parameters based on which the court will be able to assess in a certain percentage the possible contribution of the injured party to the damage towards the plaintiff, namely the insurer.

scholarly journals The Importance of the Admissibility of Evidence in Lithuanian Civil Procedure

Teisė ◽  
2021 ◽  
Vol 119 ◽  
pp. 105-117
Author(s):  
Jurgis Bartkus
Keyword(s):  
Civil Procedure ◽  
Efficient Process ◽  
Civil Proceedings ◽  
Cost Efficient ◽  
Evaluation Of Evidence ◽  
The Cost

The article analyses the importance of the admissibility of evidence in Lithuanian civil proceedings. The analysis of various sources of law allows to link the admissibility of evidence in civil proceedings not only with one of the features of evidence, but also with the objectives of this institute in civil proceedings: ensuring the quality of proof, the cost-efficient process, a fair and just trial, and other values.The reduction of the importance of the admissibility of evidence is essentially influenced by aspects related to the whole evidentiary process – the principle of free evaluation of evidence, the purpose of determination of material truth, and procedural norms establishing the judge as the final assessor of admissibility of evidence and facts. The objectives of the admissibility of evidence in civil proceedings make it necessary to find possible solutions that ensure a more appropriate relationship between the admissibility of evidence and the reasons of its importance.

scholarly journals Confirmation of the Authority of the Representative of an Individual in Civil Proceedings

2021 ◽  
pp. 73-82
Author(s):  
Dmytro SKOROPAD
Keyword(s):  
Point Of View ◽  
Legal Assistance ◽  
Procedural Law ◽  
Theoretical Approaches ◽  
Legal Relationship ◽  
Civil Proceedings ◽  
Legitimate Interests ◽  
Legal Fact ◽  
The Right ◽  
Substantive Law

The issue of determining representation in civil proceedings is substantiated. The relation of procedural representation as procedural activity and as legal relations is investigated. Based on the analysis of legal acts, doctrinal approaches, case law, the position is maintained that the purpose of representation of an individual in civil proceedings is to provide legal assistance to an individual in order to protect his or her rights, freedoms and legitimate interests. On the basis of scientific and theoretical approaches the definition of procedural representation as a legal relationship is substantiated. The existence of two types of legal relations in procedural representation is substantiated: external between the representative and the court, which are based on the norms of procedural law, and internal, which are based on the norms of substantive law. The issue of confirmation of the powers of the representative of an individual in civil proceedings as a legal fact that gives rise to a legal relationship between the representative and the principal, the representative and the court is substantiated. The requirements to the documents confirming the authority of the representative are substantiated. The urgency of the issue of certification of the powers of the representative is substantiated, as the new amendments to the Civil procedural code have raised a number of debatable issues regarding the exercise of procedural rights through the representative. Based on the analysis of current legislation and the provisions of scientific doctrine, it is concluded that the consideration of the procedural capacity of the representative is reduced to the point of view that this is the authority of the representative. The decision of the Supreme Court was analyzed, thanks to which some conflicts concerning the certification of the authority of a representative of an individual were eliminated. Among the main tasks of the legislator — on the one hand, not to lose the positive achievements that regulated the certification of the representative of an individual, and on the other, to eliminate existing gaps in legislation that will allow individuals at a high professional level to resolve disputes in court, protect their rights and legitimate interests and ensure respect for the right to professional legal assistance, as well as ensure the right to a fair court.

scholarly journals When is a Voluntary Patient not a Voluntary Patient? An examination of the degree to which the Irish courts have sought to engage with the jurisprudence of the European Court of Human Rights, in relation to the treatment and detention of voluntary or 'informal' patients

2016 ◽  
Vol 2016 (22) ◽  
pp. 38
Author(s):  
Hope Davidson
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
Medical Profession ◽  
Case Law ◽  
Court Case ◽  
Need For Treatment ◽  
European Court ◽  
The Supreme Court ◽  
Supreme Court Case ◽  
Considerable Body

<p>Faced with the difficulty of reconciling the tensions between the need for treatment, and respecting patients’ rights, case law suggests that the courts in Ireland have tended to maintain a deferential approach to the medical profession and not to give voice to the significant rights protections set out in the jurisprudence of the European Court of Human Rights (‘ECtHR’) and instead view the legislation in this area, the Mental Health Act 2001 through a paternalistic prism. This has given rise to what seems at first glance to be the extraordinary logic in what is now the leading, and only, Irish Supreme Court case in the area, E.H. v Clinical Director St Vincent’s Hospital. This case states that a voluntary patient is not a voluntary patient in so far as one ordinarily understands the word. In the Supreme Court, Kearns J, said:</p><p><br />‘The terminology adopted in s.2 of the Act ascribes a very particular meaning to the term ‘voluntary patient’. It does not describe such a person as one who freely and voluntarily gives consent to an admission order.’</p><p><br />This suggests an interpretation of the 2001 Act which is not immediately reconcilable with the considerable body of jurisprudence of the European Court of Human Rights.</p>

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