SPECIFICS OF ESTABLISHING JURISDICTION OVER ENVIRONMENTAL DISPUTES

2020 ◽  
Vol 10 (5) ◽  
pp. 248-274
Author(s):  
M.A. SHABALINA ◽  
Yu.A. KRYUCHKOVA
Keyword(s):  
Case Law ◽  
Legal Certainty ◽  
Supreme Courts ◽  
International Regulation ◽  
International Jurisdiction ◽  
Environmental Disputes ◽  
Procedural Reform ◽  
Commercial Courts

This article deals with the problems of establishing jurisdiction over environmental disputes. The issues under consideration are relevant in the context of Russian regulation because both commercial courts and courts of general jurisdiction could be competent to hear the disputes, which inevitably entails difficulties for both the applicants and the courts themselves as the provided case law demonstrates. Besides, the issues are topical because of the numerous changes of Russian supreme courts’ approaches towards them, and also due to the procedural reform of 2019. Relevance in the context of international regulation is due to lack of specialised rules for establishing international jurisdiction over environmental disputes, while the rules on international jurisdiction over tort disputes are not fully effective. The article also analyses the rules on jurisdiction over tort disputes provided for by Russian procedural codes. The article concludes that in the absence of clear rules on the competence of arbitration and general courts to hear environmental disputes, significant differences between the rules of the codes affect the implementation of the principle of legal certainty in considering this type of disputes.

scholarly journals Asymmetric cross-citations in private law: An empirical study of 28 supreme courts in the EU

2021 ◽  
pp. 1023263X2110146
Author(s):  
Sabrina D’Andrea ◽  
Nikita Divissenko ◽  
Maria Fanou ◽  
Anna Krisztián ◽  
Jaka Kukavica ◽  
...  
Keyword(s):  
Empirical Study ◽  
Case Law ◽  
Reciprocal Relationship ◽  
Court Decisions ◽  
Private Law ◽  
Mixed Result ◽  
Supreme Courts ◽  
Domestic Courts ◽  
Ease Of Access ◽  
The Eu

Recent years have seen a growing volume of research on citations between courts from different countries. This article fills a gap in the current literature by presenting and analysing cross-citations between the highest domestic courts responsible for matters of private law in the EU from 2000 to 2018. It addresses two main questions: first, to what extent do judges cite foreign case law in their decisions? Second, what may explain the varying levels of engagement of supreme courts with foreign case law? Our findings offer a mixed result as to the nature and frequency of such cross-citations. Overall, we identify 2984 cross-citations; yet, only in few instances do we find a reciprocal relationship between the supreme courts of two countries, while more generally an asymmetric picture emerges. The article also discusses whether problems with the ease of access to court decisions may partly be responsible for limitations in the use of cross-citations.

scholarly journals A VINCULAÇÃO DO PRINCÍPIO PROCESSUAL DA NÃO-SURPRESA E A APLICAÇÃO DA LEI DE INTRODUÇÃO ÀS NORMAS DO DIREITO BRASILEIRO – LINDB

Percurso ◽  
2019 ◽  
Vol 3 (30) ◽  
pp. 42
Author(s):  
Frabriccio Petreli TAROSSO
Keyword(s):  
Decision Making ◽  
General Rule ◽  
Case Law ◽  
Public Law ◽  
Tax Law ◽  
The Novel ◽  
Legal Certainty ◽  
Federal Law ◽  
National Tax ◽  
Definition Of

RESUMOO presente artigo pretende aproximar alguns conceitos da novel Lei de Introdução às Normas do Direito Brasileiro – LINDB ao princípio da não-surpresa aplicável ao processo tributário, seja ele Administrativo ou Judicial. A Lei Federal n. 13.655 de 25/04/2018 houve por incluir no Decreto-Lei nº 4.657, de 4 de setembro de 1942 - Lei de Introdução às Normas do Direito Brasileiro - disposições sobre segurança jurídica e eficiência na criação e na aplicação do direito público. Deste modo, muitas dúvidas têm surgido acerca da convivência entre a regra geral de direito tributário, inserta no Art. 144 do Código Tributário Nacional, de que a lei vigente à época dos fatos geradores deve ser levada em conta ao deslinde de uma questão e que a jurisprudência majoritária à época dos mesmos fatos – se modificada – não deve servir de parâmetro para a tomada das decisões. PALAVRAS-CHAVE: Lei de Introdução às Normas do Direito Brasileiro – LINDB; Princípio Processual da não-surpresa.ABSTRACTThe present article intends to approximate some concepts of the novel Law of Introduction to the Norms of Brazilian Law - LINDB to the principle of non-surprise applicable to the tax process, be it Administrative or Judicial. Federal Law n. 13,655 dated 04/25/2018, there was a need to include in Decree-Law No. 4.657, dated September 4, 1942 - Law on Introduction to the Rules of Brazilian Law - provisions on legal certainty and efficiency in the creation and application of public law. In this way, many doubts have arisen about the coexistence between the general rule of tax law, inserted in Article 144 of the National Tax Code, that the law in force at the time of the generating facts must be taken into account in the definition of an issue and that the majority case-law at the time of the same facts - if modified - should not serve as a parameter for decision-making. The study will have as a method the legal and bibliographical research on the subject.KEYWORDS: Law of Introduction to the Norms of Brazilian Law – LINDB; Procedural Principle of Non-Surpris

Between health and salary: The incomplete regulation of working time in European law

2019 ◽  
Vol 10 (4) ◽  
pp. 370-385
Author(s):  
Vincenzo Ferrante
Keyword(s):  
Health And Safety ◽  
Case Law ◽  
Working Time ◽  
Equal Treatment ◽  
Social Rights ◽  
The European Union ◽  
International Regulation ◽  
History Of ◽  
Definition Of ◽  
The Right

The European Union competences on health and safety of workplace constituted the legal basis for the 93/104 Directive to be adopted (and for the consolidated text of 2003/88 Directive). The Court of Justice has firmly maintained this approach refusing to take into account the history of international regulation on working time, which links together work and salary in perspective to give the workers the right to fair and equal treatment as regards their working conditions (as has been recently proclaimed also by the European Pillar of Social Rights). Building on these general premises, this article analyses the more recent European pieces of legislation and cases related to on-call time and proposes a new model for the definition of working time in the light of CJEU case law.

English Worldwide Freezing Orders in Europe

2018 ◽  
Vol 5 (3) ◽  
pp. 250-274
Author(s):  
Pontian N. Okoli
Keyword(s):  
Public Policy ◽  
Member State ◽  
Case Law ◽  
Judicial Discretion ◽  
Mutual Trust ◽  
Legal Certainty ◽  
Legal Regime ◽  
Protective Measures ◽  
Legal Provisions ◽  
Court Of Justice

A judgment creditor who obtains a freezing order in one EU Member State may seek to enforce it in another Member State. When judgment creditors seek to enforce such orders, the judgment debtors may appeal against the enforcement orders. This article examines how protective measures can be guaranteed pending such enforcement appeals under the Brussels legal regime. Relevant legal provisions and the case law of the Court of Justice are considered. There is also an examination of the recent English response to the Brussels legal regime and an argument that the judgment creditor is entitled to protective measures. Drawing support from public policy and mutual trust considerations, this article concludes that exercising judicial discretion in granting protective measures pending appeals undermines legal certainty.

scholarly journals The Environmental Jurisprudence of the International Tribunal for the Law of the Sea

2007 ◽  
Vol 22 (3) ◽  
pp. 369-381 ◽  
Author(s):  
Alan Boyle
Keyword(s):  
Dispute Settlement ◽  
Environmental Law ◽  
Case Law ◽  
Law Of The Sea ◽  
Settlement System ◽  
International Environmental Law ◽  
Environmental Disputes ◽  
Dispute Settlement System ◽  
Marine Environmental ◽  
Environmental Jurisprudence

AbstractThis presentation starts out with an overview of the environmental jurisprudence of international tribunals and courts in the last decade. The author then examines the jurisprudence of the ITLOS and considers four issues that have arisen: the precautionary principle; environmental impact assessment; environmental co-operation; and jurisdiction over marine environmental disputes. Concluding, he asks what the jurisprudence tells us about the Tribunal's role in the LOSC dispute settlement system. First, the Tribunal's provisional measures cases have established the utility of the Article 290 procedure as a means of protecting the rights of other States but also the marine environment in general. Second, there is evidence in the case law of a desire to settle disputes between the parties in a way that contributes to the development of a consistent jurisprudence and of a willingness to interpret and apply Part XII of the Convention in accordance with the contemporary state of international environmental law. The Tribunal's record on marine environmental disputes is a positive one.

Minderheitsschutz im Personengesellschaftsrecht

2020 ◽  
Author(s):  
Björn Staudinger
Keyword(s):  
Case Law ◽  
Federal Court ◽  
Regulatory Framework ◽  
Majority Voting ◽  
Careful Examination ◽  
Legal Certainty ◽  
Fiduciary Duties ◽  
Legal Principles ◽  
Court Of Justice ◽  
Federal Court Of Justice

This study deals with the changing case law on the control of majority voting in German partnership law. It examines the consequences of the German Federal Court of Justice abandoning the so-called ‘Bestimmtheitsgrundsatz’ (the principle of legal certainty) and how to deal with the ongoing legal uncertainty regarding the existence of the so-called ‘Kernbereichslehre’ (the principle on protecting minorities in corporations). To answer this question, the author examines how majority voting can be controlled within the existing regulatory framework. In this context, after careful examination of previous case law, he argues that the ‘Kernbereichslehre’ should be abandoned and replaced by already existing legal principles, such as fiduciary duties.

Federal Constitutional Guarantees of the States: Section 106 and Appeals to the Privy Council from State Supreme Courts

1978 ◽  
Vol 9 (3) ◽  
pp. 348-374
Author(s):  
Christopher D. Gilbert
Keyword(s):  
Subject Matter ◽  
Case Law ◽  
State Courts ◽  
State Supreme Courts ◽  
Privy Council ◽  
Supreme Courts ◽  
High Court ◽  
Federal Constitutional ◽  
Recent Statement ◽  
The Subject

The abolition of all appeals from the High Court to the Privy Council, coupled with the High Court's recent statement that it no longer regards itself as bound by Privy Council decisions, highlights the fact that appeals still lie, in many matters of State jurisdiction, from State Supreme Courts direct to the Privy Council. In this article, Mr Gilbert is primarily concerned to examine the extent to which section 106 of the Commonwealth Constitution may provide protection for these “direct” appeals. To this end, Mr Gilbert examines what case-law exists on section 106, and attempts to place the section in perspective in relation to the rest of the Constitution. The difficult (and largely unexplored) relationship between section 106 and section 51 is considered, to discover the possible reaches of Commonwealth legislative power with respect to the subject-matter protected by section 106. The position of “direct” appeals within the States’ constitutional structures is looked at, in order to determine the possible ambit of whatever protection is offered by section 106, and finally, Mr Gilbert analyses the recent comments by Mr Justice Murphy that the abolition of Privy Council appeals from the High Court has meant the consequential demise of “direct” appeals from State courts.

The Vale Decision and the Court’s Case Law on the Nationality of Companies

2013 ◽  
Vol 10 (1) ◽  
pp. 1-17 ◽  
Author(s):  
Jesper Lau Hansen
Keyword(s):  
Case Law ◽  
Legal Certainty ◽  
Unfinished Business ◽  
Freedom Of Establishment ◽  
Court Of Justice

In its decision in Vale, the Court of Justice takes another step forward, while still respecting its two-pronged case law on the nationality of companies. Analysing this case law shows a considerable move towards a genuine freedom of establishment for companies and paints a more nuanced picture than is normally acknowledged. However, the necessary legal certainty so paramount for business in these matters still requires actual legislation. In this respect, the question of establishment and the freedom of companies to choose their nationality remain unfinished business.

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 The Changing Role of Nordic Courts

2021 ◽  
pp. 167-183
Author(s):  
Martin Sunnqvist
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Case Law ◽  
Nordic Countries ◽  
Constitutional Rights ◽  
Supreme Courts ◽  
The Rule Of Law ◽  
Changing Role

AbstractThe Supreme Courts in all the Nordic countries reserve, and exercise, the power to set aside unconstitutional laws. In this way, they protect the rule of law and the human rights that are enshrined in their national constitutions. However, they go about this in different ways and treat different constitutional rights in ways distinct from one another. In this chapter, I discuss the development of the diversified judicial review of legislation in the Nordic countries. I also discuss the independence of their judiciaries in the light of the latest developments in Europe. Finally, I discuss the importance of developing standards for the interpretation of case law on these constitutional issues. Recent development brings with it two consequences for Nordic courts: the task of assessing the independence of judiciaries in other EU states, and questions about how the rule of law and the independence of the judiciary can be strengthened at home.

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