scholarly journals DISMISSAL PROTECTION IN THE BRICS COUNTRIES IN LIGHT OF ILO CON VENTION No. 158

2019 ◽  
Vol 6 (4) ◽  
pp. 34-66
Author(s):  
E. Sychenko ◽  
M. Laruccia ◽  
D. Cusciano ◽  
I. Chikireva ◽  
L. Wenpei ◽  
...  
Keyword(s):  
Case Law ◽  
National Standards ◽  
Employment Protection ◽  
Social Aspect ◽  
International Labour Organisation ◽  
Legal Standards ◽  
Brics Countries ◽  
Protection Systems ◽  
International Instruments ◽  
Dismissal Protection

The BRICS countries have aspirations to achieve sustainable development in their economies and environmental protection. These aspirations have an important social aspect in the area of employment protection as it relates to ensuring fair development. In order to establish national standards for dismissal protection in four of the BRICS countries (Brazil, Russia, China and South Africa) the authors have considered the legislation and relevant national case law. This paper includes a review of International Labour Organisation (ILO) standards of dismissal protection, which are used as a pattern for comparison. The paper consists of five parts: the first deals with the history and explores the legal standards adopted in the ILO Convention No. 158; the remaining four parts present the research on each of the national dismissal protection systems in the four BRICS countries under study. The authors conclude that even though the national systems are different and have dissimilar scopes in respect of dismissal protection, their regulations are largely in line with the Convention, which has not been ratified by any of the BRICS countries; and that international instruments even without ratification may be a helpful instrument for shaping the national system of dismissal protection, and for providing guidance to policymakers and legislators.

scholarly journals Social values and public procurement in health: can ‘smart’ procurement enhance justice in health?

2020 ◽  
Vol 30 (Supplement_5) ◽  
Author(s):  
V Mezeiova
Keyword(s):  
Case Law ◽  
Social Aspect ◽  
Health It ◽  
Health Governance ◽  
Ethics And Economics ◽  
Economics Of Health ◽  
Effectiveness And Efficiency ◽  
Health Justice ◽  
The Impact ◽  
The Eu

Abstract Governments spend 29% of total expenditure on procurement while the second largest area is health. However, the important question is what the impact of these expenditures on health is. Can one buy health justice through procurement? In order to answer this issue, the study firstly analyses theory of global health governance to substantiate whether procurement is a health governance tool whose efficiency and effectiveness determines health outcomes. Secondly, health as a social aspect is scrutinised because its governance and procurement have to be driven by a normative value. Within the study, health justice is justified to be such a value as it is a significant public health factor in practice. Following this normative claim, the study uses analysis of legislation, case law and examples from procurement practice to show whether procurement law can enhance health justice. In terms of methodology, the study establishes a normative framework of governance in health, health justice and procurement. On that basis, it distinguishes procurement categories (procurement of health, and procurement for health) and concludes what it is in procurement that health justice is transformed into. In order to answer the core research question, the study analyses harmonised transnational EU legislation, policy, case law of the CJEU, and examples from practice through stages of supply framework - at input, output and outcome. The study leads to a conclusion that procurement serves as a tool of governance in health. In order to reach effectiveness and efficiency of procurement in health, it is submitted that procurement needs to reflect on the argument of ethics and economics of health. Health inequalities are an operationalized factor to reach this. The EU procurement law enables to consider health justice. However, it is restricted by the requirement of proportionality. Therefore, health justice is perceived as distortion, rather than a goal of competition to be enhanced. Key messages In order to reach effectiveness and efficiency of procurement in health, it is submitted that procurement needs to reflect on argument of ethics and economics of health. The EU procurement law enables to consider health justice. However, it is rather perceived as distortion, than a goal of competition to be enhanced.

Part 2 National and Regional Reports, Part 2.5 Latin America: Coordinated by Lauro Gama and José Antonio Moreno Rodríguez, 58 Colombia: Colombian Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Salame Antonio Aljure
Keyword(s):  
Latin America ◽  
Civil Law ◽  
Case Law ◽  
Private International Law ◽  
Gap Filling ◽  
Commercial Law ◽  
Legal Relationship ◽  
Commercial Code ◽  
The Hague ◽  
International Instruments

This chapter looks at Colombian perspectives on the Hague Principles. In Colombia, civil and commercial regulations are contained in two separate codes: the Colombian Civil Code and the Commercial Code. Despite their separation, commercial law draws from civil law and regulates several areas not covered by the latter. As a result, civil and commercial law in Colombia should be understood as complementary in that they both regulate international contracts and share similar foundations and principles. There is currently no modern law that comprehensively deals with private international law in Colombia. However, the Bogotá Chamber of Commerce is in the process of drafting legislation with the objective of clarifying the interpretive approach to norms underlying international contracts. Although there is no express reference to the Hague Principles as a guiding or interpretative source of law for judges, it has been recognized in case law that international instruments such as the UNIDROIT Principles of International Commercial Contracts (UPICC) may govern a legal relationship if they do not contravene an express rule. This gap-filling role facilitates the transition of law to modernity by virtue of the requirements of relevance, coherence, and justice.

‘Arrest, Arrest, Arrest’

2021 ◽  
pp. 283-315
Author(s):  
Richard Martin
Keyword(s):  
Human Rights ◽  
Due Process ◽  
Case Law ◽  
Human Rights Law ◽  
High Court ◽  
Legal Standards ◽  
Everyday Work ◽  
The Face ◽  
Court Of Appeal ◽  
Police Practices

The focus of the empirical account of human rights in Part IV is on the suspect’s right to liberty in the context of police custody. In keeping with the style adopted in Part III, the discussion that follows seeks to closely analyse how particular aspects of police practices and decision-making interact with human rights law standards. The aim in this chapter is to explore how the three statutory safeguards established in PACE to protect the suspect’s right to liberty have fared in the face of organizational pressure to detect and ‘clear up’ crime. Using the three due process safeguards established in PACE to form a framework for this chapter’s analysis, the chapter explores how officers apply, dismiss, interpret and reconstruct each of these safeguards in their everyday work. Once again, the richness of this analysis, specifically its appreciation for how law and practice do (or do not) interact, is enhanced by paying close attention to the development of lines of authority in the case law that have, it is argued, watered down the legal standards officers must apply. This analysis of the case law is based on recent judgments from the High Court and Divisional Court of Northern Ireland, as well as from the Court of Appeal in England and Wales.

Introduction

2020 ◽  
pp. 1-10
Author(s):  
Claire Fenton-Glynn
Keyword(s):  
Human Rights ◽  
Juvenile Justice ◽  
Family Law ◽  
Case Law ◽  
European Convention ◽  
The Past ◽  
European Court ◽  
Margin Of Appreciation ◽  
Growing Body ◽  
International Instruments

This chapter provides a brief introduction to the European Convention on Human Rights (ECHR), and the European Court of Human Rights (ECtHR), as it relates to children. Over the past 60 years, the ECtHR has developed a substantial and ever-growing body of case law concerning children, covering issues ranging from juvenile justice and physical integrity to immigration, education, and religion, as well as a code of family law which significantly expands the scope and influence of the ECHR. The chapter explains four key principles of interpretation (positive obligations, the living instrument doctrine, subsidiarity, and the margin of appreciation), as well as the Court’s use of international instruments.

Law, Social Science, and Racial Profiling

2002 ◽  
Vol 4 (1-2) ◽  
pp. 103-129 ◽  
Author(s):  
Jeffrey Fagan
Keyword(s):  
Data Analysis ◽  
Data Collection ◽  
Social Science ◽  
Racial Profiling ◽  
Case Law ◽  
Political Mobilization ◽  
Police Departments ◽  
Legal Standards ◽  
Police Contacts ◽  
Selection Of

The term “racial profiling” describes race-based selection of citizens for interdiction by police and other legal actors. Several studies have examined whether police disproportionately stop minority citizens both in cars and on foot, and, once stopped, whether police are more likely to search or arrest them. Whether these contacts are racially motivated has been the focus of research, litigation, political mobilization, and internal scrutiny by police departments. This article reviews definitions of practices that are commonly described as racial profiling, contrasts these narrow views with the more complex legal standards that have evolved in case law, and assesses whether recent data collection efforts can generate reliable information about the extent and nature of racially disproportionate police contacts with citizens. Data analysis procedures are identified to respond to both legal and normative questions about whether racial disparities in police stops and searches rise to the level of “profiling” and cross the threshold of a violation of constitutional guarantees. The article concludes with a brief discussion of mechanisms for regulating and monitoring police-citizen contacts to address concerns of police and citizens on the racial dimensions of policing.

What's new in law and case law around the world?

2014 ◽  
Vol 96 (895-896) ◽  
pp. 1093-1114
Keyword(s):  
Relevant Information ◽  
Case Law ◽  
International Committee ◽  
Red Cross ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
National Legislation ◽  
Exchange Of Information ◽  
The World ◽  
International Instruments

The biannual update on national legislation and case law is an important tool in promoting the exchange of information on national measures for the implementation of international humanitarian law (IHL). In addition to a compilation of domestic laws and case law, the biannual update includes other relevant information related to regional events organized by the International Committee of the Red Cross (ICRC), to the development of national committees for the implementation of IHL or similar bodies and to accession and ratification of IHL and other related international instruments.

scholarly journals Party Autonomy: Removing Obstacles to Legal Diversity in the European Market

2019 ◽  
Vol 3 (1) ◽  
pp. 91-131
Author(s):  
Afonso Patrão
Keyword(s):  
Traditional Approach ◽  
Mutual Recognition ◽  
Case Law ◽  
Regulatory Competition ◽  
Member States ◽  
New Approach ◽  
Party Autonomy ◽  
Applicable Law ◽  
Freedom Of Movement ◽  
Legal Standards

One of the main obstacles to the internal market is legal diversity: Member States often adopt different legal standards not only within public and economic law but also with regard to private law. The traditional approach of European Institutions (harmonising legislation among Member States) was soon complemented by the principle of mutual recognition; these two methodologies embodied the European strategy for minimising the problem. However, a third European tool is becoming obvious: to give private parties the ability to choose the applicable law. This new approach enhances regulatory competition among Member States and turns unessential the unification of national rules, which suits best the proportionality principle. Party autonomy as a means for overcoming the difficulties of legal diversity is not only a reality in European statutory law – which already brought the ability for choosing the applicable law to contracts, torts, divorce, inheritance, alimony, matrimonial property – but is also highlighted in ECJ’s case-law, which declared legal diversity is not a barrier to the basic freedoms as long as parties may choose the applicable rules. The article will focus on the grounds and advantages of this method to address the issue of legal diversity, advocating its use in areas where the traditional approach is ineffective or impossible (such as some rights in rem, within the scope of the freedom of movement of capital).

Private Uniform Law and Global Legal Pluralism

2020 ◽  
pp. 745-767
Author(s):  
Gralf-Peter Calliess ◽  
Insa Stephanie Jarass
Keyword(s):  
Legal Theory ◽  
Legal Pluralism ◽  
Case Law ◽  
Commercial Law ◽  
Limited Success ◽  
Functional Equivalent ◽  
Uniform Law ◽  
International Instruments ◽  
International Chamber Of Commerce ◽  
Universal Rule

Global legal pluralism comes in many forms and carries various implications. This chapter traces the phenomena of legal pluralism in the field of commercial law. It is commonly held that legal certainty is of paramount importance to merchants. Therefore, efforts to harmonize commercial law on the international level are pertinent, albeit with limited success. As states proved unwilling or unable to create uniform commercial law, various private initiatives were established to achieve this end, the most prominent examples being the International Commercial Terms (Incoterms) and the Uniform Customs and Practice for Documentary Credits (UCP), both promulgated by the International Chamber of Commerce. From the perspective of global legal pluralism, such privately created uniform commercial law is an instance of legal pluralism. Interestingly, in this case it is not state law as the universal rule, which encounters conflicting normative claims of a substate social field, but it is a privately created normative regime that claims universal authority over the fragmented domestic commercial law regimes. According to conventional legal theory, such claim is simply ridiculous and it seems to be impossible for private uniform law to operate successfully. However, an analysis of English and German case law reveals that the Incoterms and the UCP in fact are effectively operating as uniform law and thus as a privately created functional equivalent to international instruments such as the Convention on the International Sale of Goods. This chapter, therefore, argues that beyond theoretical discussions in textbooks, judges do practice what global legal pluralism suggests.

scholarly journals Investigations on the Use of Limitations to Freedom of Religion or Belief in Brazil

2020 ◽  
Vol 15 (1-2) ◽  
pp. 77-95
Author(s):  
Thiago Alves Pinto ◽  
Rodrigo Vitorino Souza Alves
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Freedom Of Religion ◽  
Public Officials ◽  
Human Rights Treaties ◽  
Domestic Legislation ◽  
Domestic Courts ◽  
Low Levels ◽  
The Right ◽  
International Instruments

Abstract The present article analyses cases from top Brazilian courts and has received contributions from several scholars, practitioners, and public officials to better understand the use of limitations to freedom of religion or belief in the country. The Brazilian Constitution provides for the right to freedom of religion or belief as a fundamental right, and other domestic legislation regulate the right, including those implementing international human rights treaties that Brazil has ratified. These laws are easily accessible. Nevertheless, domestic courts seldom rely on such international instruments or the case-law of international bodies in their judgments. Therefore, although these instruments are in force in Brazil, domestic courts do not expressly use or refer to the clauses of permissible limitations of the relevant international and regional human rights instruments, creating a scenario with low levels of legal certainty for those seeking the protection of the right to freedom of religion or belief.

Labour Discrimination Related to Pregnancy and Motherhood in Croatia

2016 ◽  
Vol 6 (1) ◽  
pp. 62
Author(s):  
Helga Špadina
Keyword(s):  
Labour Market ◽  
Gender Equality ◽  
Working Mothers ◽  
Case Law ◽  
Legal Framework ◽  
Paper Analysis ◽  
Bank Loans ◽  
Legal Standards ◽  
Labour Discrimination ◽  
And Gender

In 2012, Croatian Office for Gender Equality published report on position of pregnant workers and working mothers on the national labour market. Survey results clearly demonstrated concerning situation in the labour market where every second pregnant woman was dismissed due to pregnancy. The remaining 50% of pregnant workers and working mothers faced denial of one or more labour rights due to pregnancy or childcare. Apart from violation of basic human rights in the labour market, pregnant workers and working mothers faced discriminatory practices in financial sector i.e. denial of right to take bank loans. These practices are contrary to current Croatian labour and gender equality legislation, as well as European and international legal standards related to protection of pregnant workers and working mothers. Nonethless, due to high national unemployment rate, women faced with labour discrimination rarely use available legal remedies. This paper analysis legal framework applicable to labour discrimination of pregnant workers and working mothers, primarily through the lens of applicable European acquis communautaire i.e. Directives. It also investigates case law of Croatian courts and the European Court of Justice related to labour discrimination of pregnant workers and working mothers. More specifically, research explores convergences and divergences of national and European case law. The aim of the paper is to contribute to academic discussions on the labour market gender equality and measures necessary to achieve full respect of all national and international legal standards.

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