Беларусь на перепутье конституционного развития

The article analyzes the possible options for the constitutional development of the Republic of Belarus. Among them: amending the current Constitution, the adoption of a new Constitution and the restoration of the 1994 Constitution. The author substantiates his approach to the forthcoming constitutional reforms.

A critical analysis of the inefficacy of Court-Annexed Mediation (CAM) in South Africa – lessons from Nigeria

As a result of defects in the South African civil justice system, the Department of Justice and Constitutional Development introduced voluntary court-annexed mediation (CAM) in the magistrates’ courts in 2014. CAM was chosen under the broader need for greater access to justice because it has the potential to make dispute resolution efficient, amicable, and affordable. It can, therefore, contribute to access to justice for all members of society. Since the amendment of the Magistrates’ Court Rules to provide for CAM, the uptake of mediation in terms of the CAM system has unfortunately been inadequate. The aim of this article is to identify reasons for the inefficacy of CAM since its implementation. We use normative research to critically analyse existing court rules and authority. We conclude that there are several reasons for CAM’s inefficacy which are elucidated in the main text. It is important to understand these reasons, as the legislature presents CAM as a mechanism to improve access to justice. From this platform, we evaluate the mechanisms for court-connected alternative dispute resolutions provided by the Nigerian Multi-Door Courthouse (MDC) system. This reveals policies and practices that could potentially improve the efficacy of CAM in South Africa, as these relate to the factors identified as impediments to the optimal functioning of CAM in our civil justice system. As such, we identify valuable lessons that can be learned from this comparison. Building hereon, and on the conclusions reached elsewhere in the article, we postulate that the mediation scheme, as contemplated by Rule 41A of the Uniform Rules of Court (as applied in the superior courts), should also be implemented in the magistrates’ courts. The article concludes that improving CAM in South Africa is of critical importance to advancing access to justice and departing from a culture of conventional adversarial dispute resolution.

Constitutionalisation of Environmental Protection in Poland

This article aims, on the one hand, to analyse how the constitutionalisation of environmental protection in Poland has developed and, on the other hand, to review the currently adopted constitutional solutions regarding environmental protection. After briefly describing the term ‘constitutionalisation’, the author presents the constitutional development of Poland, with a special emphasis put on provisions regarding environmental protection. The detailed analysis of provisions is followed by the conclusions.

IZBOR I SASTAV USTAVNOG SUDA REPUBLIKE SRBIJE

The Constitutional Judiciary is one of the basic state functions embodied in an independent state body called the Constitutional Court. The Constitutional Court protects constitutionality and legality, as well as human and minority rights and freedoms, by exercising the various and numerous competencies established by the highest legal act. Its role in the legal system is extremely important and irreplaceable, which implies an analysis of the organization of the Constitutional Court. Every organ or organization is made up of people. The human staff is the supporting pillar on the composition of which the efficiency, success and professionalism of the institution depend. Carefully selected members, based on quality criteria, are a guarantee for timely and productive work. By interpreting the legal norms that regulate the issues of election and composition of the Constitutional Court through different stages of the constitutional development of our state, we will create a comprehensive picture of the solution and come to a conclusion about possible improvements to existing rules.

The New Constitutional Architecture of Intellectual Property

This chapter sketches some of the central features of the transforming constitutional architecture of intellectual property. It studies the characteristics of this constitutional development from the perspective of social acceleration, in particular. This enables the discussion of novel developments of IP, beyond the traditional constitutional treatments and the idea that human rights could re-establish the lost balance of IP. The chapter argues that the prevailing new constitutionalist architecture of IP is best understood through the role of constitutional norms in both accelerating and decelerating change. In particular, it contends that the judicature, the executive, and the private sphere increasingly replace legislators as the key drivers of IP policies; that locking-in mechanisms like the three-step test and international investment agreements (IIAs) provide the needed stability for the acceleration developments; and that the notion of structural proprietarian bias captures the spirit of the prevailing multipolar IP constitutionalism.

THE SCOPE OF STATE SOVEREIGNTY UNDER ARTICLE 194(2) TFEU AND THE EVOLUTION OF EU COMPETENCES IN THE ENERGY SECTOR

This article analyses the European Union's competences in the energy sector. It focuses on Article 194(2) of the Treaty on the Functioning of the European Union, which affords EU Member States the right to determine the conditions for exploiting their energy resources, the choice between different energy sources and the general structure of their energy supply. This article traces the constitutional development of EU competences in the energy sector to demonstrate the relevance of Article 194(2) TFEU in the current constitutional, international and sector-specific contexts of EU energy law. It analyses the recent case law of the Court of Justice of the European Union, which shows that the scope of Article 194(2) TFEU is considerably narrower in practice than its wording implies. The article concludes by evaluating the implications of this narrow interpretation on the future development of EU energy law and, in a broader context, on the reach of EU energy and climate policy.

UNLAWFUL DETENTION: A DISAPPOINTING JUDGMENT Alves v LOM Business Solutions (Pty) Ltd 2012 (1) SA 399 (GSJ)

In Alves v LOM Business Solutions (Pty) Ltd (2012 (1) SA 399 (GSJ); [2011] 4 All SA 490 (GSJ)) the plaintiff, who had been indicted for murder, was convicted in the High Court of attempted murder on 13 December 2005. Leave to appeal was granted immediately. The appeal was directed to the full bench of the division and was heard on 29 February 2008, more than two years later. The appeal was successful and the plaintiff’s conviction and sentence were set aside on 5 March 2008. The plaintiff claimed that the long interval of time between the granting of the leave to appeal and the hearing thereof should be attributed to the negligence of the defendants in that they failed to ensure that an appeal record was prepared within a reasonable time. He alleged that, as a result of the defendants’ breach of their duty, he was incarcerated for about 15 months longer than was reasonably necessary in the circumstances. (The first defendant was a firm responsible for preparing the transcript for his appeal hearing; the second defendant was the Minister of Justice and Constitutional Development, responsible for the overall administration of justice in the country.) The plaintiff claimed generaldamages for psychological pain and suffering and special damages for loss of earnings.

State Constitution-Making

This chapter describes the constitution-making by the thirteen independent republics. Most of them created bicameral legislatures, single executives, and independent judiciaries. They set forth the idea of separation of powers, which forbade members of the legislature or judiciary from simultaneously holding office in the executive, thus setting American constitutional development off in a very direction from that of the former mother country. At the same time, the Americans established written constitutions that were different from and superior to the institutions of government and they worked out devices (constitutional conventions) for creating these constitutions. Several of the constitutions had bills of rights.