Judicial Recognition of Constitutional Conventions: The Elements Revisited

not available Dhaka University Law Journal, Vol. 31, 2020 P.121-142

Reciprocal Recognition and Enforcement of Foreign Judgments in China: Breakthrough and Trend

Chinese Civil Procedure Law (CPL) provides that foreign judgments can be recognised and enforced according to reciprocity if no treaty is applicable. However, although Chinese judgments have been recognised and enforced in many countries without a treaty, China had never reciprocated before 2016. Since 2016, Chinese courts unprecedentedly recognised and enforced foreign monetary judgments based on de facto reciprocity. This spurs rich literature with mixed views about the future direction of reciprocity-based judicial recognition and enforcement (JRE) in China. This post aims to add to the current debate from two aspects. First, it tries to answer the doubts in contemporary literature about whether the two foreign judgments recognised and enforced in 2016 and 2017 are fortuitous. Second, it addresses the question of what the trend of the Chinese reciprocity-based JRE law might be.

JUDICIAL RECOGNITION OF THE APPLICATION OF THE MAXIM RES IPSA LOQUITUR TO A CASE OF MEDICAL NEGLIGENCE Lungile Ntsele v MEC for Health, Gauteng Provincial Government (unreported as yet, Case Number: 2009/52394 (GSJ) dated 24 October 2012)

It is trite law, in context of medical negligence, that the onus of establishing civil liability on the doctor’s part lies with the patient and liability must be established on a preponderance of probabilities. It is to be noted that, should the plaintiff be unable to prove his/her case on a preponderance of probabilities, judgment will be given in favour of the defendant; a court may, however, also order absolution fromthe instance. In delict, the plaintiff bears the onus to prove a wrongful act/omission on the part of the physician, as well as the element of fault (in the form of negligence) and that the act or omission caused him to suffer damages or personal injury. Where a defendant raises a special defence such as consent, contributory negligence or prescription, the onus of proof will be on the defendant. Generally, however, the application of the maxim of res ipsa loquitur is treated by the courts as a particular form of inferential reason, requiring careful scrutiny and giving rise to an inference of negligence rather than a presumption of negligence. The South African courts thus far have been reluctant to apply the maxim to cases of medical negligence, despite persuasive legal arguments that have been put forward that the maxim should be applied in specific circumstances with regard to the proof of medical negligence. In this respect general principles for the effective application of the maxim in cases of medical negligence, are, inter alia, that principles of procedural equality and constitutional considerations dictate that the maxim be applied in cases of medical negligence. It is for this reason that the present judgment under discussion (in tandem with s 27 of the Constitution) is instructive, despite the majority judgment of the Appellate Division (as it wasthen) in 1924, in Van Wyk v Lewis (supra), where it was held that the maxim does not find application in cases of medical negligence.

CIVIL-LAW SET-OFF AND SET-OFF MADE WHEN THE COURT SATISFIES COUNTERCLAIMS AND INITIAL CLAIMS: THEORETICAL REFLECTIONS ON THE SIMILARITIES AND DIFFERENCES OF LEGAL INSTITUTIONS (continuation)

In the article, the author continues to distinguish between the civil-legal set-off and the set-off made when the court satisfies the counterclaim and initial claims. As a criterion, recognition is taken as an act of will, coming respectively from the compensator (the person to whom the statement of set-off is addressed) and the defendant in the counterclaim. Judicial and non-judicial confessions are analyzed. With regard to judicial recognition, the conclusion is justified that, depending on the type of process and the existence of rules on mandatory professional judicial representation, it will be either ordinary evidence or a basis for exemption from proof, and in some cases also entail certain substantive consequences. Individual cases of so-called qualified recognition are considered (discrepancy in quantitative characteristics; discrepancy in relation to the subject or object of the legal relationship; recognition of another legal relationship; notification to the court of two or more facts, some of which correspond to the interests of the procedural opponent, and the other part – to the interests of the recognizer; discrepancy in the qualification of legal consequences; recognition of the fact of termination of claims with the reservation that they were subsequently restored on the basis of the realized secondary right).

Rethinking Richardson: Sexual Harassment Damages in the #MeToo Era

The 2014 judgment in Richardson v Oracle Corporation Australia Pty Ltd (‘ Richardson’) had a seismic effect on workplace sexual harassment claims in Australia. Overnight, the ‘general range’ of damages awarded for non-economic loss in such cases increased from between $12 000 and $20 000 to $100 000 and above. The judgment has made Sex Discrimination Act 1984 (Cth) litigation considerably more attractive for plaintiffs and resulted in greater judicial recognition of the pain and suffering experienced by sexual harassment survivors. Richardson’s impact has also been felt beyond that immediate context, with the judgment cited in support of higher damages in discrimination cases and employment disputes. However, six years and over 40 judicial citations later, Richardson’s broader significance remains unclear—particularly following the emergence of the #MeToo movement. Drawing on a doctrinal analysis of subsequent case law and qualitative interviews with prominent Australian legal practitioners, this article evaluates Richardson’s legacy and considers how sexual harassment litigation may further evolve to reflect changing societal norms.

Judicial Recognition of Outlawed Bigamous Marriage in Ethiopian Federal Supreme Court Cassation: Legal Gap-Filling or Judicial Lawmaking?

Bigamous marriage has been outlawed under the Family and Criminal Codes of Ethiopia despite its wide practice in Ethiopia. This article examined the legality of judicial recognition of the effects of bigamous marriage by the Federal Supreme Court Cassation and its implications for the regulation of marriage. The article reviewed the substance of the current family laws in light of selected decisions of Federal Supreme Court Cassation on bigamous marriage by juxtaposing principles of legal interpretation. The article argues that the recognition of outlawed bigamous marriage by the Federal Supreme Court Cassation, even for relief purposes, amounts to an act of judicial law-making. The Court’s reasoning based on the gap-filling role of the judiciary under the guise of the necessity to address problems of bigamous marriage as a ‘social reality’ deviates from the purpose of the current rules under the family law that were deliberately designed to regulate monogamous marriage.