Unification of the Case-law within the Civil Procedure System of Romania

The present article contains the main legal practice unification mechanisms, as regulated by the Romanian legislator in accordance with the current Civil Procedure Code, as well as those partaking to the Supreme Court jurisprudence in conjuncture with the lower courts by granting a uniform settlement on the legal issues comprised by the litigations referred to. The presentation starts off with the referral in the interest of the law, a traditional instrument within the national civil procedure legal sphere of activity, it continues with the notification of the Supreme Court for settling certain legal matters, a novelty at national level and of whose practical utility has already been recognised, and it ends by making reference to the second appeal, as an extraordinary means of challenge, with a relatively reduced efficiency, at present, in settling the different interpretations of the legal norms.

Right to Water and Courts in Brazil: How Do Brazilian Courts Rule When They Frame Water as a Right?

The international protection given to the right to water has increased over the last decades, with two United Nations’ resolutions establishing a freestanding right to water in 2010. Several countries have a right to water enshrined in their constitutions, while in other countries, this right has been recognised by the courts. This study aims to assess whether and how Brazilian courts are deciding water-related conflicts using the “right to water” frame, what the content given to this right is, and whose rights are protected. We created a comprehensive database of decisions issued by Brazilian courts at different levels containing the expression “right to water”. Our main findings are that the great majority of decisions are from lower courts and were issued on individual cases related to water supply. Further, we have seen that courts are frequently prohibiting the disconnection of water supply services when extreme vulnerability is argued. The same has been seen in other Latin American countries, such as Argentina, Colombia, and Costa Rica, with the one main difference that in these countries, the right to water has been carved out by the Constitutional Courts. The Brazilian Federal Supreme Court, which has the last word on the interpretation of the constitution, has not issued any decisions establishing a right to water, but there is legal mobilisation aiming for this and using UN resolutions as a key argument.

Teacher Speech Inside and Outside of Classrooms in the United States: Understanding the First Amendment

Concerns often arise about the First Amendment rights of public school educators in the United States both inside and outside of their classrooms. As such, after setting the legal context, we analyze teachers’ free speech rights in a variety of settings. In order to do so, we discuss illustrative cases analyzing the legal landscape of teachers’ free expressions rights in U.S. public schools. The purpose of this article is to provide a brief overview highlighting Supreme Court cases and selected opinions from lower courts involving teacher speech impact the expressive rights of educators in public schools rather than serve as a comprehensive analysis of all such speech cases.

Foreign law in higher courts practice. The key characteristics of Georgian private international law

This paper aims to investigate the application of foreign law in higher courts practice. The process of determining a foreign law raises practical difficulties, as a judge must apply not just foreign law acts, but also the case law and interpretation with which it is applied in another State. In private international law process the effectiveness of the application of foreign law depends on how correctly and delicately can the higher courts review decisions made by the first instances. In some countries, higher courts have the power to control the correct application or non-application of foreign law by judges, but in some cases, such courts lack this ability. In spite of the development of comparative jurisprudence and modern information technologies, none of the countries’ judge can have a claim on exact knowing of relevant standards of the law of foreign countries. Consequently, the danger of making a mistake is more greater when it comes to interpreting and applying foreign law. Thus, it cannot be expected that the higher court should be able to review interpretation of foreign law acts applied by the lower courts and to provide that this interpretation is relevant to that which the practice of the foreign country would adopt on the same question. There is an opinion that the higher courtsshould refrain from control the wrong application of foreign law in order to guard their own authority, as there is a high risk of misinterpretation of a foreign rule. The different aspects of this problem will be examined in this article.

PROTECTING PATIENT’S RIGHTS IN A POST-TRADITIONAL LEGAL SYSTEM: COMPARING LATVIAN AND JAPANESE MEDICAL JURISPRUDENCE

Litigation concerning the violation of patient’s rights, which are associated with informed consent, confidentiality, right to information and medical records, as well as occasionally with end-of-life decision- making are quite frequent in common law and civil law jurisdictions, and has lasted for over a century in issues concerning malpractice, or unauthorized medical interventions and breaches of medical confidentiality. However, what could we say about medical law-related litigation in Japan? Technically, the legal system of Japan is a civil law one, but is practically post-traditional, which is reflected in extreme paternalism in healthcare and patient-physician relationships, which could be observed before the recent decades and which still has some impact on the modern Japanese medical law, despite the number of medical law-related litigation is becoming more frequent nowadays. The Japanese legislation does not have a specific “patient’s rights law” in contrast to European states, and most of the principles relating to medical malpractice derive from case law – the practice of the Supreme Court and of the lower courts. Each of the decisions strongly depends upon the factual circumstances, and the post-traditional features of the legal system may have some impact on it.

Exit of the Court Beyond the Stated Requirements when Considering Cases from Civil, Family and Labor Relations

The article considers the grounds for the court to go beyond the stated requirements when resolving cases from civil, family and labor relations. It is shown that going beyond the stated requirements is possible both in the civil and in the arbitration process. At the same time, non-fulfillment or improper fulfillment by the court of the obligation assigned to it to resolve certain issues may lead to a violation of the rights and interests of the parties to the dispute, to the annulment of the court order. The aim of the study was to develop recommendations for improving the practice of applying the provisions of the law on the court going beyond the stated requirements. The objectives of the study were to differentiate the grounds for the court to go beyond the stated requirements with related situations; classification of cases of non-application or improper application by the court of going beyond the stated requirements; identifying ways to eliminate the violations if the court goes beyond the stated requirements. The consideration of problems associated with going beyond the stated requirements is based on general scientific research methods (formal logic method) involving industry methods (comparative study methods of arbitration and civil processes, system analysis of positive legal material), which together ensured the reliability of the results of the work. In order to correctly use the mechanism by the court to go beyond the stated requirements, to prevent and eliminate violations of the rights and interests of the parties to the dispute in such situations, the authors proposed: 2. to differentiate between the court’s withdrawal beyond the stated requirements and the situation when the court changes the wording of the claimed claim in the operative part of the decision, brings it into line with the law, and also satisfies the interest of the defendant in the court when the plaintiff’s claim itself implied this; 3. the Supreme Court of the Russian Federation to clarify in the decisions of the Plenum, in reviews of judicial practice, cases of a court going beyond the stated requirements when considering civil, family and labor disputes, limiting the arbitrary discretion of lower courts; 4. the ways to eliminate violations of the rights and interests of the parties to the dispute when the court goes beyond the stated requirements are the adoption of an additional decision, appeal of the court decision, as well as an independent claim.

THE BANK’S RIGHT TO CANCEL THE CONTRACT BETWEEN IT AND ITS CUSTOMER UNILATERALLY Bredenkamp v Standard Bank of South Africa Ltd 2010 4 SA 468 (SCA)

Does a bank have the right to cancel the contract between it and its customer unilaterally? This was the crisp question put to the court in the recent decision in Bredenkamp v Standard Bank of South Africa Ltd (2010 4 SA 468 (SCA); 2010 4 All SA 113 (“Bredenkamp: appeal”)). Before this case reached the Supreme Court of Appeal (“SCA”), two lower courts were asked to pronounce on the same question (see Breedenkamp v Standard Bank of South Africa 2009 3 All SA 339 (GSJ); 2009 5 SA 304 (GSJ) (“Bredenkamp: interim application”)); and Breedenkamp v Standard Bank of South Africa Ltd 2009 6 SA 277 (GSJ) (“Bredenkamp: main application”). (In passing it should be mentioned that Bredenkamp’s name was spelt incorrectly in the citation of both the interim and main applications; Bredenkamp’s name was correctly spelt in the citation of the decision of the SCA). The present discussion will refer to all three these decisions.