NATURE OF LEGAL RELIEF THROUGH THE LENS OF INTERNATIONAL CIVIL PROCEDURE

2021 ◽  
Vol 11 (4) ◽  
pp. 179-228
Author(s):  
V.N. KOSTSOV
Keyword(s):  
Legal Rule ◽  
State Court ◽  
Suggested Approach ◽  
Legal Rules ◽  
Textual Interpretation ◽  
Legal Nature ◽  
Legal Relief ◽  
Substantive Law ◽  
Legal Classification

The paper argues that legal relief should be treated as a complex notion that has both substantive and procedural dimensions. This argument is illustrated by reference to international disputes as a situation where legal classification has immediate practical consequences. Building on this argument, the paper concludes that courts and tribunals have to apply both substantive and procedural laws when resolving issues pertaining to legal relief. The purpose of each particular legal rule should be decisive to determine its legal nature, while other approaches to legal classification, such as textual interpretation of legal rules, are open to criticism. The paper also reviews a number of practical cases which could be resolved based on the suggested approach to legal classification. In particular, it is argued that the mixed classification of legal relief is helpful to address potential conflicts between remedies available under foreign substantive law and the procedural apparatus of the forum court (lex fori). This approach is also potentially efficient in the context of transnational enforcement of arbitral awards and state court judgments, and in particular it can be used to justify the power of the enforcing court to adapt the relief ordered by the foreign award or judgment to the procedural tradition of lex fori.

scholarly journals Legal Classification of Defects in Medical Care

2021 ◽  
Vol 16 (5) ◽  
pp. 123-138
Author(s):  
E. O. Danilov
Keyword(s):  
Medical Care ◽  
Criminal Liability ◽  
Legal Regulation ◽  
General Term ◽  
Legal Responsibility ◽  
Conceptual Approach ◽  
Legal Nature ◽  
Defects Classification ◽  
Legal Classification

The paper studies the legal nature of defects in medical care and defines criteria for their legal classification. A retrospective analysis of the development of the institution of legal responsibility for improper medical treatment is carried out. The concept of a defect in medical care and related categories, their natural ontological characteristics and classifying legal features are investigated, doctrinal approaches to the legal assessment of defects in medical care are considered. It is noted that, despite the noticeable evolution that the question of the responsibility of doctors has undergone in the history of law, there is still no single approach to understanding the legal nature of defects in medical care in jurisprudence. In modern Russian legislation, as in the criminal laws of most foreign countries, there are no special standards for such defects classification. At the same time, in the interests of optimal legal regulation of relations in the field of medicine, today it is the legal definition and systematization of basic concepts and criteria for the legal classification of various medical incidents that matters and not the introduction into the law of special articles establishing criminal liability for improper provision of medical care. Thus, by combining all adverse events in medical practice under the general term "medical incidents", one can use the concept of "medical care defect" to distinguish incidents caused by inappropriate provision of medical services. The author proposes his own classification of defects in medical care dividing them into medical torts (offenses) and medical incidents (accidents and medical errors) based on the nature of the attitude of the subject of medical activity to their professional duties. A conceptual approach to the legal classification of medical care defects has been formulated.

(b) diagrammatic methods for organising texts: • tree diagrams; • flow charts; • algorithms; • Venn diagrams; (c) textual methods for organising texts: • tables; • paragraph analysis, linking and summarising; (d) identification of interrelationships between different types of legal rules; (e) knowledge of substantive law, eg, the law of contract. Many people do not know how to listen to, or read for, an argument. They hear or see words and do not know how to capture the potential meanings, arguments, truths and errors that they carry. They do not know how to split the text into its constituent parts to locate argument. Every skill that is necessary for the competent study of law is interconnected and most problems, whether purely theoretical (what is law?) or practical (what does this law mean for the defendant?) require the competent handling of interconnected skills of language use, legal rules and facts. Figure 3.5, below, demonstrates some of the complexities and interrelationships referred to in this introduction. It is important to internalise these issues. Those who grasp these interconnections and become competent handlers of rules Figure 3.5: skills required for competent legal rule analysis

2012 ◽  
pp. 52-52
Keyword(s):  
Language Use ◽  
Legal Rule ◽  
Legal Rules ◽  
Know How ◽  
Venn Diagrams ◽  
Different Types ◽  
Flow Charts ◽  
Rule Analysis ◽  
Substantive Law ◽  
Competent Study

scholarly journals Orzekanie w polu polityczności

2018 ◽  
Vol 7 (1) ◽  
pp. 65-95
Author(s):  
Rafał Mańko
Keyword(s):  
Carl Schmitt ◽  
The Political ◽  
Legal Rules ◽  
Community Or ◽  
Judicial Decisions ◽  
Chantal Mouffe ◽  
Per Se ◽  
The Relationship ◽  
Legal Classification

The purpose of this article is to analyse the relationship between adjudication and the concept of the political. By referring to the understanding of the concept of the political developed inter alia by Carl Schmitt and Chantal Mouffe, the article posits that not all judicial decisions (individual instances of adjudication) should be treated as belonging to the sphere of the political, but only those which fulfil jointly two premises: firstly, they are true decisions, involving at least some degree of discretionality (in the sphere of facts, or in the sphere of law, or in the sphere of the legal classification of facts), and secondly, involving a conflict which is structural for the community or society within which this adjudication is performed. Political adjudication should not be perceived as per se wrong, nonetheless it should be subject to a democratic scrutiny and sustained critique to with greater attention than apolitical adjudication, which merely involves the mechanical application of unambiguous legal rules to undisputed facts.

Die Rolle staatlicher Auswahlentscheidungen im Rechtsschutzsystem der "Konkurrentenverdrängungsklage"

2019 ◽  
Author(s):  
Moritz Weckmann
Keyword(s):  
Civil Service ◽  
Legal Protection ◽  
Current State ◽  
Legal Nature ◽  
Selection Decision ◽  
Administrative Procedures ◽  
Administrative Act ◽  
Judicial Protection ◽  
Legal Classification

The legal classification of the so-called "action taken by a competitor" has been controversial for decades. The jurisdiction is still looking for a systematically stringent and just solution. Most recently, the Federal Administrative Court revived the controversy about the legal nature of the governmental selection decision in civil service law. The work contributes an examination in monographic depth to this debate, which records the current state of discussion in jurisdiction and literature, identifies the governmental selection decision as an integrated administrative act and examines its impact on administrative procedures and legal protection. The legal protection concept, elaborated here, would avoid systematic infringements and normalise the judicial protection. It could be regulated with relatively little legislative effort.

Arguing over Texts

2017 ◽  
Author(s):  
Martin Camper
Keyword(s):  
Literary Criticism ◽  
Rhetorical Theory ◽  
Ancient Greek ◽  
Textual Interpretation ◽  
Ambiguous Words ◽  
And Behaviors ◽  
Textual Meaning

Arguing over Texts presents a rhetorical method for analyzing how people disagree over the meaning of texts and how they attempt to reconcile those disagreements through argument. The book recovers and adapts a classification of recurring types of disagreement over textual meaning, invented by ancient Greek and Roman teachers of rhetoric: the interpretive stases. Drawing on the rhetorical works of Aristotle, Cicero, Quintilian, and Hermogenes, the book devotes a chapter to each of the six interpretive stases, which classify issues concerning ambiguous words and phrases, definitions of terms, clashes between the text’s letter and its spirit, internal contradictions, applications of the text to novel cases, and the authority of the interpreter or the text itself. From the dispute over Phillis Wheatley’s allegedly self-racist poetry to the controversy over whether some of Abraham Lincoln’s letters provide evidence he was gay, the book offers examples from religion, politics, history, literary criticism, and law to illustrate that the interpretive stases can be employed to analyze debates over texts in virtually any sphere. In addition to its classical rhetorical foundation, the book draws on research from modern rhetorical theory and language science to elucidate the rhetorical, linguistic, and cognitive grounds for the argumentative construction of textual meaning. The method presented in this book thus advances scholars’ ability to examine the rhetorical dynamics of textual interpretation, to trace the evolution of textual meaning, and to explore how communities ground their beliefs and behaviors in texts.

A Layered Approach to Jurisdiction

2017 ◽  
Author(s):  
Dan Jerker B. Svantesson
Keyword(s):  
Data Protection ◽  
Data Privacy ◽  
General Data Protection Regulation ◽  
Legal Rules ◽  
Privacy Laws ◽  
Scope Of Application ◽  
General Data ◽  
Layered Approach ◽  
Substantive Law

This chapter observes how it may be inappropriate to apply a single jurisdictional threshold to diverse instruments such as data privacy laws. In the light of this observation, a proposal is outlined for a ‘layered approach’ under which the substantive law rules of such instruments are broken up into different layers, with different jurisdictional thresholds applied to each such layer. This layered approach is discussed primarily as a technique to be utilized in legal drafting, but it may also be applied in the interpretation and application of legal rules. Article 3 of the European Union’s General Data Protection Regulation, which determines that regulation’s scope of application in a territorial sense, provides a particularly useful lens through which to approach this topic and, thus, the discussion is largely centred around that Article.

scholarly journals Obce przepisy wymuszające swoje zastosowanie. Glosa do wyroku Trybunału Sprawiedliwości Unii Europejskiej z dnia 18 października 2016 r. w sprawie C-135/15 Republika Grecji przeciwko Grigoriosowi Nikiforidisowi

2019 ◽  
Vol 25 ◽  
pp. 91-106
Author(s):  
Arkadiusz Wowerka
Keyword(s):  
Legal System ◽  
The State ◽  
Legal Rules ◽  
Article 9 ◽  
The Subject ◽  
Academic Discussion ◽  
Substantive Law ◽  
Rome I

This commentary examines the judgement of the CJEU of 18 October 2016 in case C-135/15 Republik Griechenland v. Grigorios Nikiforidis. The judgement in question concerns the issue of treatment of foreign overriding mandatory provisions under the Article 9(3) of Regulation No 593/2008. This topic is the subject to a great deal of controversy and academic discussion. The ECJ concluded that the mentioned provision must be interpreted as precluding overriding mandatory provisions other than those of the State of the forum or of the State where the obligations arising out of the contract have to be or have been performed from being applied, as legal rules, by the court of the forum, but as not precluding it from taking such other overriding mandatory provisions into account as matters of fact in so far as this is provided for by the national law that is applicable to the contract pursuant to the Regulation. This interpretation is not affected by the principle of sincere cooperation laid down in Article 4(3) TEU. In this respect the judgement of CJEU brings significant clarification on the question, whether a court of the forum can have regard to foreign overriding mandatory provisions, which do not belong to the legal system of the country of performance of the contract on the level of the applicable substantive law. However, there are still questions arising under Article 9(3) of Rome I Regulation, which need to be clarified.

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