The Application of National Law and Composite Procedures in the Single Supervisory Mechanism. Did the Court of Justice of the EU find a New Van Gend en Loos?

The Single Supervisory Mechanism (SSM) represents the most recent legal novelty in EU law. The SSM has created a hybrid dual administration formed by both national and European authorities. The application of national law and composite procedures make it more difficult to distinguish, in practice, which courts should be responsible for evaluating the legality of the measures adopted. This article attempts to analyse the existence of a gap in the current system of legal protection, and suggests some proposals to continue to guarantee access to courts and a complete and coherent system of judicial remedies under EU law. A possible extension of the approach used by the Court of Justice in the Rimšēvičs case could be considered in areas where there is a less marked distinction between EU and national law, such as in the SSM. Following this principle, the Court should be able to directly annul any national act that contravenes EU law.

The notwithstanding clause: Legislatures, courts, and the electorate

This article interprets the notwithstanding clause in section 33 of the Canadian Charter of Rights and Freedoms. When a legislature activates the notwithstanding clause, subsection 33(2) temporarily ensures a protected law’s ‘operation’ by preventing it from being ‘inconsistent’ with the Constitution of Canada in the sense of the supremacy clause, thereby precluding judicial remedies such as striking down. Construed in the light of its components (some never considered by the Supreme Court of Canada) and other constitutional features, the notwithstanding clause does not make rights irrelevant or strip them of their legal character. Nor does it confide the assessment of trade-offs about rights to the legislature alone. Instead, subsection 33(3) indicates a framework for such assessments in which the voting public plays a crucial evaluative role. The courts, as interpreters and guardians of the Constitution, can, and in some circumstances should, support the public’s constitutional role by declaring the extent to which a protected law unjustifiably limits Charter rights. The public’s ability to take such declarations into account in evaluating rights trade-offs would advance the democratic purpose of subsection 33(3), a purpose that underpins our constitutional framework more broadly.

Public Reactions to Noncompliance with Judicial Orders

Constitutions empower people to ask judges for binding orders directing state agents to remedy rights violations, but state agents do not always comply. Scholars propose that by making it easier to observe noncompliance, courts can leverage public pressure for compliance when it exists. Yet, exposure to information about noncompliance might lead individuals to accept high levels of noncompliance and reduce support for judicial remedies. We estimate the rate of noncompliance with judges’ orders via a rigorous tracking study of the Colombian tutela. We then embed this rate in three survey experiments fielded with online national quota samples. We show that people find the noncompliance rate in the tutela highly unacceptable regardless of a variety of mitigating factors. We also show that public reactions to this information depend on prior expectations, a finding that stresses the importance of scholarship in cognitive psychology for studies of compliance in law and politics.

Part VIII Remedies For Default, 27 Debt and Other Agreed Sums

This Part mostly concerns judicial remedies for breach of contract (the self-help remedy of forfeiture of a deposit is noted at [27.109]). The chapter sequence reflects both the division between Common Law (chapters 27 and 28) and Equity (chapter 29) but, more importantly, the practical importance of the judicial remedies, debt mattering more than damages, and in turn damages more than specific performance or injunctions. And so chapter 27 concerns ‘Debt’ (but agreed damages, ie liquidated damages clauses, are treated in the same chapter because the sum payable is, by definition, fixed or calculable in advance; but technically, agreed damages are damages and not a cause of action sounding in debt). Chapter 28 concerns damages, that is, compensation. Damages is a branch of the law which continues to generate a mass of intricate case law. Finally, chapter 29 concerns the equitable remedies of specific performance, injunctions, account of profits, and declarations. It is a fundamental principle that specific performance can be granted only if the Common Law remedies (debt and damages) are inadequate on the relevant facts. Chapter 27: The predominant claim for contractual default is the action for debt, to compel payment. Statistically this is the front-runner amongst remedies for breach. The availability of interest is also noted in this chapter.

10. How to sue the government: judicial processes and judicial remedies

This chapter addresses the extraordinary process of judicial review and the remedies available to the court. The process and the remedies are compared to the process and remedies in ordinary claims (which can also be used to control administrative action). In their self-regulation in developing these complex processes, the challenge for judges is to keep things in proportion: the attempt to achieve due process in judicial control of administrative action is essential to the administration of justice. The chapter explains the irony of process, which was introduced in Chapter 4: the courts may need to provide forms of process that are excessive and wasteful in some cases, in order to protect the administration of justice.

26. Remedies

This chapter examines the basic principles of remedies for tort claims. The judicial remedies include damages and injunctions. This chapter discusses principles concerning the award of the different types of damages, which include nominal damages (for rights infringements resulting in no tangible loss), aggravated damages (for affronts to the claimant’s dignity), exemplary damages (which are designed to punish and deter future wrongdoing), and contemptuous damages. Special reference is made to the application of the principles in cases of death and personal injury, the former topic encompassing discussion of the survival of actions principle and of the Fatal Accidents Act 1976.

THE PRINCIPLE OF RESTORATIVE JUSTICE IN TAX DISPUTE SETTLEMENT BY THE TAX COURT

Tax dispute resolution has a number of uniqueness. Its judiciary system takes a procedure starting from filing objections in the executive realm, appeals and filing lawsuits as well as judicial review in the judicial realm. All of these legal remedies do not delay the obligation of the tax payers to pay taxes and the task of Fiscus to collect taxes. Dispute settlement using administrative power has weaknesses as the resolver is one of the parties in the dispute (the Fiscus). Judicial branc of power come to play to settle tax disputes through the Tax Court. No cassation in the settlement of tax disputes as judicial remedies. All settlements of tax disputes are aim at otaining justice. When there is a tax dispute between Fiscus and the Taxpayers the path of mediation is advised. This normative legal research has found that mediation in the settlement of tax disputes by the Tax Court is a form of Dignified Restorative Justice in the form of Dignified Mediation as it is in line with the Pancasila values and virtues. The diversion from conventional processes through mediation is also humanistic in nature, namely the effort to humanize humans, the manifestation of the Pancasila Legal System.

The Development of Administrative Law in the United Kingdom (1890–1910)

This chapter offers some reflections and thoughts on the evolution of nineteenth-century fin de siècle administrative law in the United Kingdom. The period 1890–1910 was a time of social, political, and economic change. Administrative power was expanding and there was a need for administrative law controls over the exercise of such power. The chapter examines the following principal themes: the dominant tradition of Diceyan constitutionalism and its reaction to the growth of administrative power; the development of judicial review by the courts; and the growth of non-judicial remedies in the form of tribunals. It is argued that the period between 1890 and 1910 was a formative one for both the administrative state and administrative law. Many of the developments in administrative law during this period still provide the key building blocks on which contemporary administrative law is based.

A Historical Outline of the Development of Civil Procedure in Transylvania as Part of Romania

The following study constitutes a historical outline of the evolution of Romanian civil procedure in the period between 1918 and 2013 from the perspective of the norms applicable in Transylvania as part of Romania. Romanian civil procedure in the period immediately after 1918 presented a diverse picture, with several procedural regimes applicable in the same country at the same time. This raised the necessity of unifying procedural norms, at first attempted by recodification and later accomplished by the extension of the Code of Civil Procedure of the Kingdom of Romania to Transylvania in 1943. As the Soviet-type totalitarian regime was consolidated in the late 1940s, a reform (much rather a recodification) of civil procedure occurred in the new spirit of the age, which, along with subsequent norms led to the reduction of judicial remedies and the introduction of a ‘lay element’ into the process by the presence of assessors, and it also increased the role of public prosecutors during the civil trial. Following the 1989 regime change, civil procedure in Romania at first, before a comprehensive reform, reverted to historical models, and then finally recodification was achieved.