Extinctive Prescription, a Means of Extinguishing the Substantive Right of Action and the Forfeiture of the Right to Invoke it

This article falls both within the provisions of the Civil Code relating to extinctive prescription, its notion and object, the effects of prescription, and, inseparably, within the provisions of the Code of Civil Procedure because this institution entails the forfeiture of the right to bring a civil action, which produces serious legal effects for the holder of the right of action because, once invoked and applied, it leads to the loss of the civil subjective right itself. The purpose of the article is to present the general legal rule governing this institution and to highlight the procedural aspects that practitioners must take into account in the activity of legal representation.

RIGHT OF ACTION TO CHALLENGE TRANSACTIONS THAT RESULT IN FOREIGN INVESTORS GAINING CONTROL OVER BUSINESS ENTITIES OF STRATEGIC IMPORTANCE

In the Russian Federation, as in a number of other economically developed countries, there are legal restrictions on the admission of foreign investors to participate in commercial corporate organizations of strategic importance for national defence and state security. Failure by foreign investors to comply with this mechanism leads to the nullity of transactions and, as a consequence, to legal disputes, the subject of which are mainly restitution claims. There have been numerous problems and academic debates in recent court practice regarding the reasons and the possibility of satisfying such claims. In particular, in view of the changed circumstances after the conclusion of the contested transaction, the real public interest is not always visible pursued by the claim for application of consequences of its invalidity. The author proposes that in the course of judicial proceedings in such cases, when the defendant raises the relevant reasoned objections, not only to state the fact of violation of the law by a foreign investor, but also to reveal the public interest defended by the foreign investor. The author proposes that, in such cases, the defendant’s arguments should not be limited to stating that the foreign investor has breached the law. If one is not established, a claim may be dismissed under certain conditions, taking into account established doctrinal approaches to the understanding of the right of action.

The issue of claims for compensation under Article 18(1) of the Act of 21 June 2001 on the Protection of Tenants’ Rights, Commune Housing Resources and Amendments to the Civil Code

The paper briefly outlines some selected issues regarding claims for compensation against a person occupying residential premises without a legal title under Article 18(1) of the Act of 21 June 2001 on the Protection of Tenants’ Rights, Commune Housing Resources and Amendments to the Civil Code. The nature of the compensation and the obligation to pay the same, the nature of liability for damage on the part of the person occupying residential premises without a legal title as well the right of action to pursue claims under Article 18(1) of the above-mentioned Act have been discussed.

5. Special duty problems: public bodies

Public bodies have extensive powers to act for the public benefit but often have limited resources. Difficult decisions have to be made, and if those decisions are wholly unreasonable they may be corrected by judicial review; that is, by public law remedies. A more difficult question is whether failure by a public body provides a private right of action to someone harmed (or not benefited) by the decision. While the general principles of duty of care apply (that is, proximity and whether it is fair and just to impose liability), there are several limitations on the liability of public bodies in negligence. This chapter first discusses the special common law principles applicable to the exercise of discretion by public bodies. It then considers specific problematic areas, including the difficulties involved in establishing duties of care by the emergency services before examining the effect of the Human Rights Act 1998 in establishing obligations owed directly by the state.

Part III Capacity and Parties, 9 Third Parties and Co-Parties

An agreement to confer a benefit on a third party is not actionable by the third party at Common Law. Statute has now intervened to modify the position: (i) a direct right of action can be expressly conferred on a named or identifiable third party; (ii) the contract can create by implication such a right, exercisable by a third party, if the contract `purports to confer a benefit’ on such a person. The statute has been examined in the courts and some subtleties have emerged. Claims by parties on behalf of third parties are also considered in this chapter. There is the distinct context in which a promise is made to more than one party, who are known as co-promisees. These technical rules are examined.

19. Breach of statutory duty

This chapter examines how statutory obligations occasionally give rise to private actions in tort. It explains that a breach of a statutory duty will not automatically confer a right of action on anyone adversely affected by it (and that it does not necessarily ground an action for negligence either). The chapter sets out the relevant elements of the statute-based tort, noting that the claimant must prove both that he was intended by Parliament to be protected as an individual and that the protection was aimed at preventing the kind of loss he suffered. If these elements are fulfilled, he will be entitled to compensation for loss. Defences specific to this area of law are considered also.

Internationale Investitionen in Form von Gesellschaftsbeteiligungen

One of the most important differences between the investment protection law of the past, which is based on the law of diplomatic protection and customary aliens law, and modern investment protection law, which is based on a large number of international treaties, including international treaty provisions on the procedural enforcement of claims, is the question of whether, in addition to the company whose rights have been violated by state measures, its shareholders are also entitled to a legally enforceable claim for compensation under international law. The thesis is dedicated to the proof of the following theses: 1.) Foreign shareholders have a fundamental right of action, regardless of the amount and whether it is a direct or indirect shareholding. 2.) In order to guarantee that the principles of the rule of law are observed in mass proceedings, the existing ICSID-regulations need to be supplemented by "additional procedural rules" which have yet to be formulated.

Nevsun Resources Ltd. v. Araya

In Nevsun Resources Ltd. v. Araya, the Supreme Court of Canada declined to dismiss a series of customary international law claims brought by Eritrean refugees against a Canadian mining corporation for grave human rights abuses committed in Eritrea. In doing so, the Supreme Court opened the possibility of a novel front for transnational human rights litigation: common law tort claims based on customary international law. Under the doctrine of adoption, customary international law is directly incorporated into the Canadian common law. However, Canadian courts have not yet upheld a private right of action for violations of customary international law. Writing for a divided court (5–4), Justice Abella allowed the plaintiffs’ claims to proceed, finding that it is not “plain and obvious” that the plaintiffs’ customary international law claims are bound to fail under either Canada's burgeoning “transnational” or “foreign relations” law, or international law itself. In reaching this conclusion, she offered a unique and overdue reflection on the role of national courts in identifying, adopting, and developing custom. A larger majority of the court (7–2) also rejected outright the application of the act of state doctrine in Canada, tracking several common law systems in limiting the doctrine in favor of human rights litigants.

The State as a Fiduciary

This chapter analyses the state’s responsibility to provide a venue for civil recourse (ordinarily, by means of a private right of action). Civil recourse theorists have explained the state’s obligation to provide for private rights of action in terms of social contracts. On this view, the state owes its citizens a means to act against a wrongdoer, given that the state has largely prohibited self-help. Such accounts are discussed along with an alternative to a social contract theory: the state may be a fiduciary to its citizens. Elaborating on the fiduciary account, this chapter suggests the state may have an obligation to provide for private law institutions of a certain type. Notably, part of the state’s responsibility may be to provide private law institutions that facilitate pursuit of those projects that individuals find meaningful. Provision for rights of redress may then be an important component of the state’s fiduciary obligations.