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Journal articles on the topic 'Customs courts'
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1
Entin, Kirill V. "The Influence of the Eurasian Economic Union Court’s Legal Findings on the Case Law of Russian Courts in Customs Disputes." Вестник Российской таможенной академии, no. 3 (2022): 56–64. http://dx.doi.org/10.54048/20727240_2022_03_56.
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In the absence of a preliminary reference procedure as an instrument of judicial dialogue between the EAEU Court and national jurisdictions a key role in the uniform application of Union law and its efficiency in general will be played by the reception of EAEU Court’s legal findings by the courts of the Member States. Using the case law in the field of customs relations as an example the author examines the use of the EAEU Court’s case law by Russian courts. The results of this analysis show a significant number of references by Russian courts of not only the EAEU Court’s approaches in cases relating to the customs classification of goods, but also to universal legal findings in the fields of technical regulation, free movement of goods and protection of fundamental rights. It also shows that a judicial dialogue needs to be established not only with the Supreme Court, but with lower courts as well. The articles also explores the current problems in the interaction between the EAEU Court and the Russian courts such as the impossibility to review a judgment in the light of new circumstances in Russian courts after a judgment of the EAEU Court. The author considers that this significantly undermines the effectiveness of an application to the EAEU Court and of the EAEU system of legal protection in general. In order to solve this problem it appears necessary to modify the procedural codes in the Member States as well as to amend the EAEU Treaty.
2
Glass, Melissa. "“The Rust of Antiquity”?: Print Culture, Custom, and the Manorial Court Guidebooks of Early Modern England." Canadian Journal of History 56, no. 1 (April 2021): 1–23. http://dx.doi.org/10.3138/cjh-56-1-2020-0032.
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Early modern England’s manor courts were local institutions controlled by landlords, operated by their stewards, and governed by customary law. They fulfilled a wide variety of legislative, punitive, and adjudicative functions regarding the regulation of community resources and the resolution of minor conflicts between tenants. Starting in the mid-sixteenth century, publishers in London began to print short, accessible manuals that explained how to operate these manor courts. The eight manor court guidebooks published in English from 1561 to 1666 that are examined in this article illustrate the important role that manor courts continued to play in daily life. But their publication also contributed to the codification, and eventually the gradual corrosion, of localized customs that formed the foundation of the courts’ jurisdiction. Custom and communal memory continued to play a large role in the organization of early modern English society, but these unwritten customs were increasingly in tension with broader cultural impulses towards codification and uniformity that were reinforced by the published guidebooks. The impact of these guidebooks was ultimately to delimit the jurisdiction of the courts, encourage the professionalization of court officials, diminish the significance of local customs, and confirm the authority of landlords by articulating their positions as local leaders. Manorial court guidebooks are useful illustrations of how the educated elite in early modern England saw customary law as a necessary but old-fashioned form of justice without a clear role in the country’s legal system in the future.
3
Charvát, Radim. "Goods in Transit and Intellectual Property Under the EU Law and Caselaw of the Court of Justice." International and Comparative Law Review 14, no. 2 (December 1, 2014): 93–104. http://dx.doi.org/10.1515/iclr-2016-0054.
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Abstract The paper addresses the issue whether customs authorities of Member States are entitled to suspend or detain goods in transit (i.e., products directing from one non- Member State to another non-Member State through the EU) and the evolving case-law of the Court of Justice related to this matter. Prior to the judgment in Philips and Nokia cases, a so-called manufacturing fiction theory was applied by some Member State courts (especially Dutch courts). According to this theory, goods suspended or detained by customs authorities within the EU were considered to be manufactured in the Member State where the custom action took place. In the Philips and Nokia judgments, the Court of Justice rejected this manufacturing fiction theory. But the proposal for amendment to the Regulation on Community trade mark and the proposal of the new Trademark directive, as a part of the trademark reform within the EU, go directly against the ruling in the Philips and Nokia cases and against the Understanding between the EU and India.
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Asaaju, Morenikeji. "“The Native Court Way”." Journal of West African History 9, no. 1 (March 1, 2023): 27–56. http://dx.doi.org/10.14321/jwestafrihist.9.1.0027.
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Abstract This article examines surviving native court records from 1905–1957 in Abeokuta, Southwest Nigeria, to argue that what constituted marriage, marital rights, and sexual access to wives was changing readily in this period of socioeconomic and political change. In this period, Britain established the native court system, stressing African and British judges, to apply rigid ideas of native law and customs concerning marriage. Men and women—husbands, wives, lovers, fathers, uncles, aunties, brothers, sisters, and in-laws—approached the native courts to negotiate conflict over marriage, divorce, seduction, adultery, and child custody. Rather than administering rigid legal judgements of what constituted legitimate marriage, judgements rendered by these courts provided maneuverability, specifically for women to negotiate and contest marital status and relations.
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Mariotta, Martín, Fabrizzio de Armas, and Camilo Méndez. "Jurisprudence of Civil Appeals Courts in the Matter of Rules of Origin (2013–2019)." Global Trade and Customs Journal 15, Issue 3/4 (March 1, 2020): 195–201. http://dx.doi.org/10.54648/gtcj2020026.
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This article approaches the study of the Jurisprudence of Civil Appeals Courts in the matter of rules of origin in Uruguay, during the period from 2013 to 2019. It analyses the territorial admissibility factors of Judgments pronounced in first instance and how Civil Appeals Courts have resolved by confirming or reversing the appealed rulings. Customs Law, Customs offences procedures, Difference offence, Rules of origin, Appeals courts, Appeal
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Diaz Gavier, Patricio, and Patricio Diaz Gavier. "Post-Clearance Recovery of Customs Debt in Europe." Global Trade and Customs Journal 5, Issue 11/12 (November 1, 2010): 433–38. http://dx.doi.org/10.54648/gtcj2010054.
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Article 221 of the Community Customs Code sets out the process that must be followed for the postclearance recovery of customs debt. Following its instructions is critical. If the customs authorities do not play by its rules, they cannot recover the customs debt. The application of these rules has been contentious, and national courts have frequently turned to the Court of Justice of the European Union (EU) for clarification on Article 221 or its predecessor(s). During the years 2009–2010, the Court has been particularly active. The once “blurry” rules are now more clearly defined to the benefit of legal certainty, although new issues may still arise. This article provides an overview of the state of play, which is of course in the interest of importers and the trade to know well.
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Armella, Sara. "Article: Customs Value in case Law." Global Trade and Customs Journal 19, Issue 5 (May 1, 2024): 284–92. http://dx.doi.org/10.54648/gtcj2024040.
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In the operations of verifying the reliability of the sales price of goods, declared at the importation stage, the databases held by the Customs Authorities, according to an increasingly common practice in European countries, are increasingly important. In recent years, case law, including that of the European Court of Justice and national Supreme Courts, has provided many important clarifications on customs valuation. Among the many judgments worthy of further study, one should particularly focus on the rulings of the European Court of Justice intervening on the recalculation of the price declared in Customs. In this sense, the judgment of the EU Court of Justice of 9 June 2022 in Case C-187/21 (Fawkes Kft) reaffirmed the obligation of the customs authorities to conduct an effective adversarial procedure and the need to ensure compliance with the strict hierarchical criteria laid down in the EU Customs Code. Ruling on a subject of great interest to traders, this judgment also clarified that the customs value of goods can be re-determined on the basis of data contained in national databases, without there being any obligation to consult EU or other Member States’ databases.
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Lee, Ki-Young. "6Limitations and Improvement Plans of the Customs Act on Reproductive Rights." Korean Academy Of International Commerce 37, no. 3 (September 30, 2022): 41–55. http://dx.doi.org/10.18104/kaic.2022.37.3.41.
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Purpose : The purpose of this article is to identify the problems with the standards for reproductive rights under the current customs law and to present opinions on the current legal improvement required in the digital trade era. Research design, data, methodology : This study examined the regulations on additional factors in determining the customs value under the current Customs Act and confirmed the problem of reproductive rights under the current Customs Act through recent precedents. Results : As can be seen from the recent precedents of Korean courts on commercial broadcasting after duplication, the completely opposite position of the Supreme Court and the High Court in interpretation regarding the right to reproduce is insufficient for the judgment of the right to reproduce under the Customs Act in light of the current increase in digital transactions. Conclusions : In order to create a sound and sincere tax payment climate and to realize fair customs administration, this study proposes an opinion on the application of exceptions to the import declaration subject and the expansion of the provisional price declaration system with respect to the establishment of clear standards for reproduction rights and the imposition of additional factors such as royalties.
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Shevchenko, E. A. "Refund of mistakenly paid and/or overpaid customs duties: ways to improve the effectiveness of the protection of the rights of economic operators." Analytical and Comparative Jurisprudence, no. 5 (November 17, 2023): 432–36. http://dx.doi.org/10.24144/2788-6018.2023.05.77.
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The article draws attention to the fact that, at the moment, there is significant support among administrative courts for the opinion according to which the measure of judicial response to the fact that the customs authority did not prepare a conclusion on the recovery of mistakenly paid and/ or overpaid customs duties from the budget is to recognize this inaction as unlawful and placing the respective customs authority under obligation to prepare such a conclusion and submit it to the state treasury. In contrast to this, according to the provisions of the doctrine of effective judicial protection, which is approved in the literal meaning of the provisions of the legislation on administrative proceedings and is developed and specified in the practice of its interpretation and application, optimal ways of influencing the court on disputed legal relations in cases of illegality of decisions, actions and inactions of sub In many cases, the subject of power has a direct obligation to restore violated rights. In light of this, it is justified that an effective method of judicial protection of the rights of declarants against the inaction of customs authorities in the framework of the procedure for the return of mistakenly and/or excessively paid amounts of customs payments, which would fully and definitively restore their rights, excluding the need for repeated appeals to the court by ensuring the possibility of enforcement of a court decision, there is a collection from the state budget through the state treasury of mistakenly and/or excessively paid amounts of customs payments. It is noted that for the possibility of forced recovery of erroneously and/or excessively paid amounts of customs payments by the administrative court, the declarant must confirm that he has fulfilled all the requirements of the law for this, in particular, that he has no tax debt. It is noted that the further perspective of increasing the effectiveness of the protection of the rights of declarants in legal relations regarding the return of mistakenly and/or excessively paid amounts of customs payments is the introduction of the possibility of administrative courts to collect these funds based on the results of consideration not only of cases about the return of mistakenly and/or excessively paid amounts of customs payments, but and by satisfying the requirement for this in cases in which the illegality of the decisions of the customs authorities is established, which led to the groundless accrual or additional accrual of the amounts of customs payments (in particular, in the cases of recognition as illegal and cancellation of the decision on the adjustment of the customs value of goods). This should optimize the organizational and economic losses of declarants and customs authorities, caused by the need to apply for formal confirmation of the existence of grounds for the return of mistakenly and/or excessively paid amounts of customs payments under a special procedure.
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Ura, Elżbieta. "„Ucywilnianie” dotychczasowych stosunków służbowych funkcjonariuszy celnych w związku z reformą administracji celno-skarbowej — w kontekście zasady praworządności." Przegląd Prawa i Administracji 114 (August 10, 2018): 255–68. http://dx.doi.org/10.19195/0137-1134.114.16.
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CHANGE OF THE LEGAL STATUS OF THE CUSTOMS SERVICE OFFICER FROM THE ADMINISTRATIVE AND LEGAL RELATION TO THE CONTRACTUAL RELATION — IN THE CONTEXT OF THE RULE OF LAWOn March 1, 2017, acts reforming the customs and tax administration system came into force. They introduced not only changes in the system of organs and organizational structure of this administration, but also significantly influenced the legal status of Customs Service officers. Not all officers were offered further service in the newly created customs and tax administration. Some of them received offers of employment in positions of civil part — in general has not been employed for a further period. In both cases, the relationship was terminated, which in the light of the adopted statutory solutions is treated as an exemption from service. A very large group of officers filed appeals to administrative courts, some of them — also to common courts. Against the background of the provisions formulated in such a way, the question arises: whether the change of the legal status of the Customs Service officer from the administrative and legal relation to the contractual relation made by the director of the customs chamber as part of the powers entrusted to him, is in line with the rule of law. The answer to this question will ultimately be given by the courts. The study will, however, present general observations regarding the existing situation.
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Diyachenko, Ekaterina B. "Evidence During Consideration by the Court of the Eurasian Economic Union of Cases in the Field of Customs Legal Relations." Вестник Российской таможенной академии, no. 3 (2022): 45–56. http://dx.doi.org/10.54048/20727240_2022_03_45.
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The process of proving is a key stage in the judicial dispute resolution. The case law of international courts and legal doctrine demonstrate a shift in the approach towards proving in comparison to the national judicial procedure, which is due to the existence of interstate disputes and the lessening of the role of evidence in their resolution. By contrast, proceedings in integration courts, initiated in a significant number of cases by individuals, increase the relevance of the proving process. Using cases in the field of customs relations as an example the author analyses the case law of the Eurasian Economic Union Court with regard to the subject and burden of proof as well as what information may be viewed as evidence. The analysis conducted shows that the classical onus probandi actori incumbit remains the general principle of proving. Nevertheless the are reasons to believe that the Eurasian Economic Union Court’s case law could follow the path of protecting economic entities as the “weaker” party and develop an apporach on the duty of the Eurasian Economic Commission to prove that its decision, action (failure to act) is legal.
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Febri Jaya, Winda Fitri, and Leny Pelita Besouw. "CERTAINTY REGARDING LEGAL CHOICES BETWEEN RELIGIOUS COURTS AND DISTRICT COURTS REGARDING APPLICATIONS FOR DETERMINING HEIRS." Bengkoelen Justice : Jurnal Ilmu Hukum 13, no. 2 (December 9, 2023): 182–93. http://dx.doi.org/10.33369/jbengkoelenjust.v13i2.31298.
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In accordance with the research title listed above, Indonesia has three legal systems that regulate inheritance, namely; Islamic inheritance law which is based on and uses the holy book Al-Quran as its source, western civil inheritance law which originates from Burgerlijk Wetboek (hereinafter referred to as the Civil Code), and finally customary inheritance law based on the customs of the community itself, this cannot be separated from from the role of each court that handles it. Therefore, the author needs to conduct research on the certainty of legal choices between religious courts and district courts regarding applications for determining heirs. The aim of the research is to analyze the role of the district court and religious court in the application for determining heirs, after that this study will also analyze how legal certainty is provided regarding the legal choice between the district court and the religious court. The results obtained from this research are that the implementation of Law no. 50 of 2009 regarding every application for determining Islamic heirs must be handled and under the authority of a religious court, in fact this does not mean that the district court is of the opinion that it no longer has the right and authority to adjudicate applications for inheritance, this is because the authority possessed by the district court still has power. law in an effort to adjudicate applications for determining inheritance for Muslims. However, what needs to be underlined is that the difference between religious courts is that when it comes to resolving inheritance cases, religious courts are guided by the complications of Islamic law, while district courts are based on the Civil Code, namely western law. Keywords:District Court, Religious Court, Inheritance, Petition, Determination
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Wincenciak, Mirosław. "“Transformation” of a Tax and Customs Administration Officer’s Service Relationship Into an Employment Relationship." Studia Iuridica Lublinensia 29, no. 1 (March 29, 2020): 215. http://dx.doi.org/10.17951/sil.2020.29.1.215-227.
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<p>Lack of court protection for officers whose current service relationship is substituted with a form that is less beneficial – an employment relationship, should be seen as a violation of their right to trial. A labour court, by definition, is not an appropriate court when it comes to cases of entering into or the termination of service relationships having a legal and administrative character. This court can judge cases concerning the employment relationship of an employee but fundamentally does not have jurisdiction to assess the establishment and termination of a legal and administrative relationship. Therefore, sending customs officers to labour courts causes the transformation of a service relationship into an employment relationship to slip out of court control.</p>
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Rovetta, Davide, and Agnieszka Smiatacz. "The German Federal Constitutional Court’s Judgment on the PSPP: What happened to the EU law Supremacy? Implications of the Judgment for the Trade and Customs Policy of the European Union." Global Trade and Customs Journal 15, Issue 9 (August 1, 2020): 435–44. http://dx.doi.org/10.54648/gtcj2020083.
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The German Federal Court’s judgment on the Public Asset Purchasing Programme (PSPP) and the European Central Bank on the one hand calls into question the supremacy of European Union law. On the other hand, perhaps with some sound arguments, the mentioned Constitutional Court criticized the Court of Justice of the European Union (CJEU) for granting very limited judicial protection against acts like the challenged ones. It is the view of the German Federal Constitutional Court that the Court of Justice of the European Union by granting ‘wide discretion’ to the EU institutions, coupled with applying a ‘limited judicial review standard’, would not be able to guarantee appropriate judicial protection against EU law acts, which can be unlawful. We argue here that the reasoning as adopted in the judgment of the German Constitutional is not a new matter in the European Union, as the conflicts between the CJEU and the highest national courts did occur in the past. In fact, the judgment of the German Constitutional Court is a clear indication that according to some of the highest national courts, the unconditional supremacy of the EU law cannot be accepted. Instead, the scope of the interpreted EU measures should also align with the highest level of the national legal norms, such as constitutional norms or fundamental rights.We are also arguing that it would be up to the European Commission to re-establish the order via the infringement proceedings tool, yet that the Commission should be strongly endorsed among the EU Member States for taking such measures. It is, however, possible that the following matter can be resolved without restoring to such measures. From a substantive point of view, however, we have the regret of concluding that the German Federal Constitutional Court raised valid substantive arguments against the Court of Justice of the European Union. Finally we examine the potential scope of implications, which could occur in the trade and customs fields in the European Union. EU supremacy, PSPP, ECB, Constitutional courts, judicial review
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Martin, Kerry. "Jail By Another Name: ICE Detention of Immigrant Criminal Defendants on Pretrial Release." Michigan Journal of Race & Law, no. 25.2 (2020): 147. http://dx.doi.org/10.36643/mjrl.25.2.jail.
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This Article assesses the legality of an alarming practice: Immigration and Customs Enforcement (ICE) routinely detains noncitizen criminal defendants soon after they have been released on bail, depriving them of their court-ordered freedom. Since the District of Oregon’s decision in United States v. Trujillo-Alvarez, 900 F. Supp. 2d 1167 (D. Or. 2012), a growing group of federal courts has held that when ICE detains federal criminal defendants released under the Bail Reform Act (BRA), it violates their BRA rights. These courts have ordered that the government either free the defendants from ICE custody or dismiss their criminal charges. This Article agrees with and expands on this interpretation of the BRA. Focusing on the BRA’s plain text and legislative history, it argues that the BRA confers a “right to remain released” pending trial, which ICE detention infringes. It then debunks the leading counterarguments to this BRA interpretation. It also explores constitutional arguments for the right to remain released and their implications for federal and state criminal defendants.
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Long, Vanessa. "Online Courts: Re-Assessing Inequality in the ‘Remote’ Courtroom." Excursions Journal 11, no. 1 (July 1, 2021): 77–102. http://dx.doi.org/10.20919/exs.11.2021.283.
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This paper explores the repercussions of the virtual hearings within the context of socioeconomic inequality in the justice system. Following the imposition of ‘lockdown’ conditions in the UK in March 2020, the Courts and Tribunal Service (HMCTS) rapidly introduced an online court system resulting in thousands of hearings being swiftly transferred onto audio or video-calling platforms. This study is based on interviews with six barristers and solicitors practising in the criminal and family courts, focusing on what the online court experience can reveal about the disparity in socioeconomic status between those judging and those being judged. Conducting a thematic analysis of the interview data, I argue that the disruption to the courtroom dynamics caused by online hearings highlights tacit functions of the lawyer’s role in supporting their clients to navigate the daunting court experience and comply with courtroom customs. I ultimately conclude that concerns regarding the loss of solemnity of proceedings reveal assumptions of both the traditional and virtual court environment and suggest that further research is needed before committing to permanent technology reforms.
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Ao, Dr Moatoshi. "On the Dispensation of Justice by Customary Courts in Nagaland." International Journal of Research and Review 9, no. 3 (March 28, 2022): 504–15. http://dx.doi.org/10.52403/ijrr.20220356.
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Customs and usages have been the sole means by which any kind of disputes were adjudicated in the Naga society. It is highly appreciated for it is simple, speedy and does not involve expensive litigation. The British Raj continued this system of settlement of disputes by enacting legislations exempting the application of technical procedural laws enforced in other parts of the country. After the Indian independence, the Constitution of India provided special provisions recognizing the whole realm of Naga customary law. However, with the growth of society, the requirements of the people change and the age old customs may not cater to the current needs in many cases. Similarly, some customs and practices may conflict with the rule of law and other provisions of the Constitution. Thus, in such transitional period, the governmental organs of the state have been casted with a special responsibility. This paper endeavours to study the customary courts and its structure, functioning and authority in settlement of disputes and administration of justice. The paper also endeavours to study the customary courts vis-à-vis the formal laws in contemporary times with help of judicial decisions. Keywords: customary courts, Constitution, Article 371A, Dobhasi, Gaon Bura.
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Suhendar, Heris, and Yadi Janwari. "REGULATION AND SIGNIFICANCE OF SHARIA ECONOMIC DISPUTE RESOLUTION IN RELIGIOUS COURTS." Jurnal Ilmu Hukum Tambun Bungai 8, no. 2 (December 7, 2023): 304–19. http://dx.doi.org/10.61394/jihtb.v8i2.267.
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Religious courts have a function as actors of independent judicial power at the first level to administer justice to uphold law and justice. To carry out their functions, religious courts are given the duty and authority to examines, decide and resolve cases at the first instance between people of the Islamic faith, one of which is in the field of sharia economics. The urgency of this research is to explain and analyse the implementation of Radbruch's legal objectives in the trial process, so as to produce a fair and certain court decision. Therefore, this research aims to examine the regulation and significance of the settlement of sharia economic disputes in the Religious Courts. This research is a doctrinal research that examines the law conceptualised as a rule, using conceptual approaches and legislation. The results of the study found that: 1) the regulation of economic dispute resolution comes from legislation, customs, and jurisprudence; and 2) the significance of sharia economic dispute resolution in the Religious Courts, namely the obtaining of justice, finality / usefulness, and legal certainty for the justice-seeking community.
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Colebrook, Miguel. "‘GET OUT OF JAIL FREE’ CARD: THE COURTS’ OFFER OF ASSISTANCE TO ERRANT TRUSTEES." Denning Law Journal 25, no. 1 (September 27, 2013): 211–23. http://dx.doi.org/10.5750/dlj.v25i1.783.
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Decisions taken by trustees have consequences. When trustees make mistakes, especially mistakes that cost the trust fund dearly, can the courts ever erase those errors and let the trustees unwind what they have done and start afresh? To do so, of course, has obvious advantages for both the trustees and those beneficiaries affected by the mistakes, but it is correspondingly disadvantageous for any outsiders who might be equally affected by the court’s decision to erase - in England most typically Her Majesty’s Revenue and Customs. For a long time, the answer to the question posed seemed to be yes. This invaluable ‘get out of jail free’ card was delivered to errant trustees by virtue of what was routinely known as the ‘rule in Re Hastings-Bass.’ The Supreme Court, the highest court in the land, has now indicated that this is not right, that Re Hastings-Bass has been misunderstood for over 23 years, and that trustees are not so roundly protected by such a rule. However, in reaching its conclusions, it appears that the Supreme Court may have abolished one rule and replaced it with another, which also seems to benefit trustees.
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Mujuzi, Jamil Ddamulira. "Reconciling Customary Law and Cultural Practices with Human Rights in Uganda." Obiter 41, no. 2 (October 1, 2020): 239–56. http://dx.doi.org/10.17159/obiter.v41i2.9148.
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Customary law has been part of Ugandan law for many years. Section 2 of the Local Council Courts Act, 2006 defines “customary law” to mean “the rules of conduct established by custom and long usage having the force of law and not forming part of the common law nor formally enacted in any legislation”. Ugandan courts have explained the relationship between customary law and other laws. In 1995, Uganda adopted a constitution that includes, among other things, a bill of rights that prohibits discriminatory and degrading laws and customs. This was informed during the making of the Constitution by the arguments of many Ugandans that discriminatory and degrading customary practices and laws should be abolished by the Constitution. In this article, the author illustrates the steps that have been taken by the drafters of the Constitution, Parliament (through legislation) and courts to outlaw discriminatory and degrading cultural practices. The author recommends ways in which some of these measures could be strengthened.
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Kuplewatzky, Nicolaj. "Interim Measures before the EU Courts in the Realm of the Common Commercial Policy and the Common Foreign and Security Policy." Global Trade and Customs Journal 19, Issue 1 (January 1, 2024): 5–15. http://dx.doi.org/10.54648/gtcj2024008.
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This article focuses on successful interim measures before the General Court and the European Court of Justice in the realm of international trade and restrictive measures. Pursuant to that procedure, a judge may suspend the operation of a contested act. While the conditions for an award of such measures are famously strict, recent case-law of the EU Courts has brought about a more flexible interpretation of those conditions. The article will assess whether that logic is tenable and can be extended to the area of EU trade and restrictive measures. EU, Carbon Border Adjustment Mechanism (CBAM), customs
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Rovetta, Davide. "Are Tariff Explanatory Notes Subject to Judicial Supremacy?" Global Trade and Customs Journal 5, Issue 3 (March 1, 2010): 129–31. http://dx.doi.org/10.54648/gtcj2010013.
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In 1803, under the lead of John Marshall in Marbury v. Madison, the Supreme Court of the United States ruled that: It is emphatically the province and duty of the judicial department to say what the law is . . . If two laws conflict with each other, the courts must decide on the operation of each . . . This is of the very essence of judicial duty. Likewise in the European Union, under both EU law and the national laws of the Member States, it is widely accepted that only the judiciary must have a final say on what a given law means. Turning now from these quasi-constitutional principles to tariff classification matters, the question arises whether such principles are applied in EU customs classification matters? In the case of Explanatory Notes, the executive branch enacts ‘soft law’ guidance that, however, is widely followed and applied by the national customs administrations of the EU Member States. While formally we are facing soft law acts, the wide and almost unconditional application of tariff classification Explanatory Notes by the national customs administrations renders them de facto law.
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Akhtar, Zia. "Tribal Courts, Restorative Justice and Native Land Claims." European Journal of Comparative Law and Governance 4, no. 4 (December 13, 2017): 359–86. http://dx.doi.org/10.1163/22134514-00404001.
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The Native American tribes in the United States have maintained distinctive customs which they practice within their ‘eviscerated’ sovereignty. The tribes exercise their jurisdiction as ‘sovereign’ nations under devolution of their lands granted by the federal government, which still has a right of preemption and the power of alienation. The tribal courts exercise the restorative justice principles that are integral to their judicial procedures and where the emphasis is on healing. The disputes in tribal courts are settled by mediation through Peacekeeping Circles that restore the parties to the pre-trial status and there is input from elders in the community. The Native people not only have to differentiate and preserve their justice framework, but also claim title to land where it has been extinguished by treaty, eminent domain or Executive order of the us government. The argument in this paper is that the restorative justice principle is part of the customary law of the tribes in the us and in Canada, and their dormant land claims can be revisited if this judicial process is maintained in the context of sustaining their customs within the federal legal framework.
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Chen, Mai. "The Increasing Need for Cultural Experts in New Zealand Courts." Amicus Curiae 4, no. 3 (June 24, 2023): 583–98. http://dx.doi.org/10.14296/ac.v4i3.5618.
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New Zealand’s unique demography, with a large indigenous Māori population and a national population which is also increasingly superdiverse, means that New Zealand courts need more assistance from cultural experts if “the common law [is to] serve all in society”, as our Chief Justice recently said in the Supreme Court (Peter Hugh McGregor Ellis v R (Ellis) 2022: para 174). This paper examines two recent Supreme Court decisions: Ellis and Deng v Zheng (2022), which explain the increasing need for cultural experts in New Zealand courts to determine what tikanga (Māori customs and practices) as the first law of New Zealand is and how it applies, as well as to ensure equal access to justice despite cultural and linguistic diversity. The greatest need for cultural experts arises from the majority of the Supreme Court’s acceptance that tikanga was the first law of Aotearoa/New Zealand. There has been ad hoc (albeit growing) incorporation of tikanga and Te Tiriti o Waitangi (Te Tiriti) in various statutes, and no entrenchment in a supreme constitution, but even without statutory incorporation, the courts have interpreted statutes to take account of tikanga values and interests and to be consistent with Te Tiriti to the extent possible. Lawyers and judges need to acquire a base level of tikanga knowledge and cultural competency to be able to identify when a deeper level of tikanga/cultural expertise is needed, and cultural experts need to be called on to provide evidence to assist the Court.
This is important (not only to ensure that justice is done in particular cases) but to maintain broader constitutional legitimacy. This includes acknowledging significant cultural differences in the application and development of the common law, in relevant cases. Pluralism is an important value which may be relevant to filling the gaps in the common law created by new situations that indigenous and superdiverse cultures and languages give rise to (Chen, forthcoming 2024; see also Palmer & Ling 2023).
Keywords: tikanga; New Zealand; cultural experts; evidence; statutory interpretation; development of the common law.
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Yanti, Yanti. "DIVORCE BEYOND THE COURT OF RELIGION FOR HIGHER EDUCATION (GRADUATE)." Al-IHKAM: Jurnal Hukum Keluarga Jurusan Ahwal al-Syakhshiyyah Fakultas Syariah IAIN Mataram 12, no. 1 (June 30, 2020): 57–70. http://dx.doi.org/10.20414/alihkam.v12i1.2255.
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The background in this study is divorce outside the Religious Courts conducted by couples who have a history of higher education (bachelor). In-Law Number 1 of 1974 Article 39 and Compilation of Islamic Law Article 115 which states that "Divorce can only be carried out before a Religious Court hearing after the Religious Court has tried and failed to reconcile the two parties". The existence of these laws and regulations applies to all Indonesian citizens who are Muslim. Although it has been explicitly explained in the legislation regarding the necessity of divorce before a court hearing, in reality, the law is still ignored. Just like what happened in Renah Sungai Ipuh Village that the people in this village are still conducting divorce outside the court, from the data obtained by the author from 2013-2017 there were 24 couples who had divorced outside the Religious Court and 7 pairs of the perpetrators of the divorce were couples who have a high educational history (bachelor). The method used in this research is to use qualitative methods, namely analyzing the data that has been obtained. The conclusion of this research is first, that the causes of divorce outside the Religious Courts are 1. because they follow customs, 2. because they want to maintain their good name, 3. because of coercion from parents and 4. because the litigation process is too long and difficult. Second, the response of BP4 to the practice of divorce outside the Religious Courts, BP4 felt very concerned about the condition of the community who did not want to register their divorce in the Religious Courts, this BP4 has carried out its duties and functions to the maximum extent but has not been successful.
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Płażek, Stefan. "CONVERSION” OF A CUSTOMS OFFICER’S SERVICE RELATIONSHIP INTO AN EMPLOYMENT RELATIONSHIP." Roczniki Administracji i Prawa specjalny, no. XXI (December 30, 2021): 387–98. http://dx.doi.org/10.5604/01.3001.0015.6143.
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The selection method of existing employees or officers has been used since the beginning of the Third Polish Republic during the transformation of various public institutions, which consists of making discretionary decisions about whose employment will be continued, as well as under what new conditions it will be carried out. Using the framework for termination of employment for this purpose in subsequent acts, missing in them precise criteria for qualifying persons and the lack of regulations as to the manner of judicial protection are designed to reduce the number of people who would make attempts to contest their decisions. In 2016 on the occasion of the reform of the fiscal apparatus, this method was additionally extended to include the possibility of unilateral and selectively transforming the service relationships of customs officers into employment relationships, or vice versa - fiscal officials to officers. This option was implemented in practice in 2017. This represents a serious threat to the freedom to choose and pursue a profession which must either be restrained by declaring this type of regulation unconstitutional, or by making it unprofitable through court judgments restoring prior employment relationships. The recent case law of common courts and the Supreme Court favours it.
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Panizo Alonso, Julio Manuel. "La importancia del ceremonial en la diplomacia durante el reinado de Felipe V | The importance of the ceremonial in diplomacy during the reign of Felipe V." REVISTA ESTUDIOS INSTITUCIONALES 4, no. 7 (December 21, 2017): 107. http://dx.doi.org/10.5944/eeii.vol.4.n.7.2017.20631.
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La relación de las diferentes monarquías con las casas reales de su entorno siempre ha sido un elemento fundamental para el ejercicio de la política exterior, afectando en muchos casos por los vínculos familiares a las relaciones familiares. La presencia de representantes de los demás monarcas en las diferentes cortes desde finales del siglo XV es habitual y el trato que se daba a esos representantes era una forma más de gestionar esa diplomacia de la época.La disparidad de criterios y costumbres en ese trato con los embajadores hace que en muchas de las cortes se dicten libros de etiquetas en donde se especifica de forma detallada las costumbres a seguir en este trato, así como en la participación de las diferentes ceremonias de la Corte. La llegada de Felipe V al trono, introdujo nuevas costumbres en la monarquía española como fruto de su origen francés y que al igual que afectaron a la actividad de la corte también se visualizaron en esas costumbres con los representantes de otras monarquías.__________________The relationship of the different monarchies with the royal houses of their environment has always been a fundamental element for the exercise of foreign policy, affecting in many cases by family ties to family relationships. The presence of representatives of the other monarchs in the different courts since the end of the 15th century is common and the treatment given to these representatives was one more way of managing that diplomacy of the time.The disparity of criteria and customs in this deal with the ambassador’s makes that in many of the courts labels are dictated where the customs to be followed in this deal are specified in detail, as well as in the participation of the different ceremonies of the Cut. The arrival of Felipe V to the throne, introduced new customs in the Spanish monarchy like fruit of its French origin and that like they affected to the activity of the court also they were visualized in those customs with the representatives of other monarchies.
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Edu, OK. "A Critical Analysis of the Laws of Inheritance in the Southern States of Nigeria." Journal of African Law 60, no. 1 (July 2, 2015): 141–55. http://dx.doi.org/10.1017/s0021855315000133.
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AbstractThis article critically examines the customary laws of inheritance in the communities of southern Nigeria. It argues that the rules are skewed against female beneficiaries, both wives and children. It also argues that courts faced with such customs should subject them to the repugnancy test contained in the Evidence Act 2004, the Constitution of the Federal Republic of Nigeria 1999 and other international conventions to which Nigeria is party, as do the courts in Ghana, South Africa and Botswana.
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Tijjani, Ahmed Abubakar. "The Development of Shariah Courts in The State of Yobe And Borno In Nigeria." Al-Muqaddimah: Online journal of Islamic History and Civilization 5, no. 2 (December 28, 2017): 94–103. http://dx.doi.org/10.22452/muqaddimah.vol5no2.7.
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Including the history of the Shariah courts in the states of Yobe and Borno, in terms of their types and degrees; the establishment of their settlement and the development that took place in the shadow of democracy; these courts are all in northern Nigeria. The establishment of Islamic courts in northern Nigeria dates back to the pre-Advent of the English, where the Borno Empire exists; in present-day Borno. This indicates that the state of Borno had an ancient civilization before the advent of the English much, and therefore the courts derive their provisions from the Islamic law and local customs in all fields of public life, including the family system, transactions, like the Islamic courts in various Islamic countries, Applied to the parents throughout the country, and this is due to historical factors, and with the development of the courts are diligent and take from the other doctrines of a sentimental clinic
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Valantiejus, Gediminas, and Saulius Katuoka. "Uniformity of Application of the EU Customs Law: Problematic Aspects in the Baltic States." Economics and Culture 16, no. 2 (December 1, 2019): 21–38. http://dx.doi.org/10.2478/jec-2019-0019.
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Abstract Research purpose. The EU Customs Law is a significant branch of the EU substantive law. On the basis of the Union Customs Code (UCC; Regulation [EU] No. 952/2013) and the Combined Nomenclature of the European Union (Regulation [EU] No. 2658/87 and its Annexes), it regulates the international trade of the European Union and its Member States with the third countries, in particular the taxation of the international trade operations by applying the customs duties/tariffs. However, after the adoption of the UCC, which imperatively requires all the customs administrations of the EU Member States to work as one, the problem of the uniform application of the EU customs law remains very important. Therefore, the authors analyse the practice of the Baltic States (i.e. Republics of Estonia, Latvia and Lithuania) in this area, based on the case law of the Court of Justice of the European Union (CJEU) in cases involving references to the CJEU by the national courts of different Baltic States. Design/Methodology/Approach. The authors used the thematic analysis method and the method of generalisation of professional (judicial) practice as the basis of the chosen methodology and its design. Therefore, first of all, the authors have selected the judicial cases of the CJEU (in the period from 2010 to 2018) related to a certain theme – customs duties. Second, the authors compared the practice of the CJEU in such cases, which are attributable to the relevant EU Member State in order to identify the problems of uniformity in the application of the EU customs law (specific to the different Baltic States). Finally, by using comparative insights and comparative method, the authors present proposals for the improvement of legal regulation to ensure the compatibility of national rules and practices with the EU law. Findings. During the investigation, the authors established that the problems of the uniform application of the EU customs law in the Baltic States arose in specific areas. Such areas were tariff classification of goods, determination of the origin and value of goods (in the case of Latvia), regulation of customs procedures (in the case of Estonia), customs duties and other import taxes preferences (in the case of Lithuania). At the same time, it was established that the national courts of the Republic of Lithuania were the least active in ensuring co-operation with the CJEU this area, which could have been caused by the improper national legal regulations. Originality/Value/Practical implications. The authors present (after the assessment of the experience of the Baltic States) the proposals for the improvement of both the legal regulations of the EU customs law as well as national legal regulations (in particular – in the Republic of Lithuania) to improve the areas that cause systemic irregularities of the uniform regulation of the international trade regulatory measures of the European Union. Whilst some of the similar studies were completed in the recent years (e.g. Limbach 2015), they do not provide a detailed comparative analysis of the issues that were investigated, specifically considering the situation in the Baltic States.
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Valantiejus, Gediminas. "Legal Aspects of the Implementation of European Union’s Common Commercial Policy: Lithuanian Experience and Practice." Economics and Culture 13, no. 2 (December 1, 2016): 61–76. http://dx.doi.org/10.1515/jec-2016-0008.
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Abstract The Common Commercial Policy is the essential basis of the European Union (hereinafter - the EU), which, in particular, is a free trade area between the 28 Member States with a common external customs tariff and a common foreign trade policy as well as common trade rules with the third countries. Implementation of this policy is characterized by the fact that it is based on an exclusive competence of the EU, which after the Treaty of Lisbon (2009) became even more apparent. Therefore the countries of the EU should follow the same legal principles and rules in the regulation of their foreign trade, that is to apply the uniform EU rules on the calculation of customs duties and determination of the customs origin of goods, customs valuation and tariff classification of goods (Common Customs Tariff). However, implementation of these provisions is always experiencing stress due to the different interests of the EU Member States and the different national practices, especially when the administration of customs duties is actually implemented only at the level of individual EU Member States. Therefore the aim of the article is to assess the implementation of the EU’s CCP from the perspective of the EU Member State (Lithuania) and to describe existing discrepancies which may serve as an obstacle for the development of common regulatory regime for import customs duties in the EU or hinder its main economic goals in international trade. Analysis of relevant scientific problems is mainly based on the comparative method (comparison of the practice of the national courts in the Republic of Lithuania and the Court of Justice of the European Union in disputes related to the functioning of the EU's customs union) and generalization of professional experience (national and EU judicial practice). The research leads to the conclusion that a uniform implementation of Common Commercial Policy and the Common Customs Tariff, as its main element, is not fully ensured on the practical level from the perspective of certain Member States (i.e. Lithuania).
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Ura, Elżbieta. "Zatrudnienie funkcjonariuszy w administracji celno-skarbowej po reformie." Studia z zakresu Prawa Pracy i Polityki Społecznej 28, no. 4 (2021): 243–67. http://dx.doi.org/10.4467/25444654spp.21.021.14263.
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ABSTRAKT Employment of officers in customs and tax administration after the reform The article presents the legal regulations concerning the officers of the former Customs Service adopted by the legislator on the occasion of the reformed customs and tax administration and the establishment of the National Tax Administration. The institution of terminating the service relations of officers by law was introduced, as well as transforming the service relations into contractual relations as a result of offering the officer further work in the structures of this administration and accepting this proposal by him. Problems with interpreting these solutions were visible in the varied jurisprudence of administrative courts as well as common courts. In order to understand these difficulties, some of the justifications of the judgments have been presented more broadly. In line with these considerations, the thesis is justified that in recent years the legislator has increasingly resorted to this type of solutions and introduced institutions of termination of employment relations by law, and their cause is not “exceptional, special circumstances justified by the state system reform,” which was emphasized by the Constitutional Tribunal, only reforms related to organizational transformations in public administration. This is viewed as the means of replacing public administration staff.
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Fotic, Aleksandar. "The contracts in “other” languages and Ottoman Shari’ah Court (16th - 18th c)." Balcanica, no. 32-33 (2002): 175–82. http://dx.doi.org/10.2298/balc0233175f.
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Between the 16th and 18th centuries, as subsequently as well, non-Muslim subjects of the Ottoman Empire used as lawful proof in the Shari?ah court various documents, contracts, written in non-Ottoman languages. What is particularly worth emphasizing, is the fact that these contemporary documents, written in Cyrillic script and in the Serbian/Bulgarian language, as well as those in the Greek language, not rarely involved even Muslim and non-Muslim subjects. Even very important ones: concerning payment of debts and giving land as security. On the basis of few h?ccets preserved at Hilandar it has been shown that such documents were indeed acknowledged by the Ottoman Shari?ah courts, and as reliable and valid evidence. The h?ccets refer to them as m?loviya/m?l?yia (??????) - undoubtedly derived from the Greek term omologia (????????) - regardless of whether a document was in Greek or in some of the Slavic languages. Writing omologias in mixed milieus, with predominantly Christian population, shows that Muslim community sometimes accepted local customs and traditions of the zimm?s. They were influenced by local customs although there was open and more secure opportunity to register loans at k?d??s Shari?ah court.
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Kuplewatzky, Nicolaj. "The Divergence in Theoretical and Practical Use of Combined Nomenclature Explanatory Notes and Tariff Classification Regulations in the EU." Global Trade and Customs Journal 7, Issue 11/12 (November 1, 2012): 454–60. http://dx.doi.org/10.54648/gtcj2012055.
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All goods imported into or exported from the customs territory of the European Union must be declared and classified in conformity with the Combined Nomenclature (CN). In accordance with the so-called 'Basic Tariff Regulation', the European Commission ('the Commission') can approve explanatory notes and tariff classification regulations in order to classify a given set of goods in the CN. Their practical retroactive application however creates many problems both under EU law and the GATT 1994. The present paper analyzes such practical problems and sets forth possible solutions in light of the case-law of the Court of Justice of the European Union and of the so-called 'counter-limits doctrine' by the Italian and German Constitutional Courts. We argue that the retroactive application of explanatory notes and tariff classification regulations coupled with possible criminal and administrative sanctions against traders must be addressed by both the European Commission and the Court of Justice. We also argue that should the EU institutions fail to correct the above shortcomings, national constitutional courts, basing themselves on the counter-limits doctrine, must step in and set aside such aspects of EU tariff classification law and the national sanctions breaching fundamental freedoms.
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Care, Jennifer Corrin, and Jean G. Zorn. "Legislating for the Application of Customary Law in Solomon Islands." Common Law World Review 34, no. 2 (April 2005): 144–68. http://dx.doi.org/10.1350/clwr.34.2.144.65366.
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This article examines the problems surrounding the application of customary law in the formal courts of Solomon Islands. Commencing with a brief explanation of the status of customary law, it considers the vexed question of proof, in the context of decided cases. It also analyses three Solomon Islands Acts relevant to proving customary law: the Wills, Probate and Administration Act 1987, the Solomon Islands National Provident Fund Act 1973 and the Customs Recognition Act 2000. The article then considers the future of customary law in the formal courts of Solomon Islands.
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Kuchin, Mihail Victorovich, and Elena Evgenyevna Gulyaeva. "LEGAL RULES CREATED BY COURTS: AN OVERVIEW." Revista de Direito Brasileira 30, no. 11 (September 16, 2022): 192. http://dx.doi.org/10.26668/indexlawjournals/2358-1352/2021.v30i11.8421.
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We seek to understand the definition of legal rules created by national and international courts. We seek to look into the content of legal rules in Russian legal doctrine by classifying them into three groups. The authors consider the importance of historical background of this issue due to the changes in the international judicial system and Russian procedural legislation. We seek to analyze the phenomenon of a legal rule created by the court. We found out that all the legal rules created by courts could be divided into three main groups, depending on the source: the rules fixed in the normative legal acts of the courts; the rules fixed in normative judicial decisions; and customary legal rules approved by the courts. In general, each of the listed groups of rules has its own characteristics, which are much similar to those of by-laws, precedents, and customs respectively. The legal effect of the rules created by the court is various and depends on what body introduces a rule. The authors concluded that the rules fixed in the Resolutions of the Russian Constitutional Court are ranked between constitutional rules and legislative rules. The rules coming from the Russian Supreme Court are ranked between the rules of law and the rules of by-laws. When it comes to the rules created by international courts, two important points must be taken into account. First, international courts, on the one hand, create new rules of international law based on other more general rules and principles. On the other hand, due to the lack of a clear hierarchy of rules in international law, such rules, unlike the norms of by-laws in Russian law, do not have a dependent (subordinate) nature. Second, the principle of the supremacy of the Russian Constitution over international regulations allows us to place international rules between the Russian Constitution and Russian laws. The authors considered that this approach makes it possible to integrate the new category of rules into the general regulatory system. The researchers found out that important characteristics of the rules created by the court are their subsidiary nature and retrospective nature. The rule-making freedom of the court is limited by other applicable legal rules. The court usually creates a rule only in cases where there are no other rules to govern the disputed legal relation. That is why the life of the rules created by the court is often short. When a legislative or executive body adopts another rule on the same issue, the previously created court rule is usually considered to be cancelled. The researchers came to the conclusion that Russian legal experts have no common opinion on the issue of the normative value of the legal provisions developed through the Resolutions of the Plenums of the Supreme Courts of the USSR and the Union Republics. Following a review of the content, we raised possible problems, strategies, suggestions and guidelines for the legal rules created by courts. The authors conclude that the analysis makes it possible to distinguish a special group of rules created by courts. This special group of rules is a regulatory reality that many experts in the field of general theory of law and international law have been paying attention to in recent decades. The authors conclude that the regulation of this area at the legislative level would greatly contribute to strengthening the principle of judicial practice unity. We also point out that the concepts of the legal position and of the rules created by the court can coincide only when the acts of higher judicial bodies are in question. If we consider the concept of the legal position in the broader sense used in practice, it becomes obvious that it also covers other aspects that are in no way rules. When it comes to similar concepts, for example, precedential rules and interpretative rules, they can be considered as varieties of the rules created by courts. The authors come to the conclusion that court decision references to the provisions fixed in the previously adopted judicial acts of the aforementioned judicial bodies have become the legal basis for making a decision. This means that the normative value of judicial acts has been recognized at the legislative level. Otherwise, there is no need for legislative provisions of this sort. The researchers encourage to recognize the phenomenon of a legal rule created by the court, and to differentiate it from other similar concepts used in jurisprudence. The closest to this category is the aforementioned concept of the court's legal positions. The research uses general scientific and special cognitive techniques wherein legal analysis and synthesis, systemic, formal-legal, comparative-legal, historical-legal and dialectical methods are applied.
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Čelkis, Tomas. "Senieji žmonės XIV–XVI a. Lietuvos Didžiosios Kunigaikštystės istorijos šaltiniuose. Kas jie?" Tautosakos darbai 66 (January 26, 2024): 121–34. http://dx.doi.org/10.51554/td.23.66.07.
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Various sources of the Grand Duchy of Lithuania (GDL) from the 14th–16th centuries quite frequently mention the old people. The author proposes a hypothesis that these individuals could have been connoisseurs and custodians of the customary law and the old tradition. They testified in the treaties between the GDL and the neighbouring countries, in which the borders of the states were determined, because, at that time, the “correct” borders were considered those that had been established for a long time, i. e. by the customs. These people tried to remember and indicate these borders. The old people used to participate in the GDL courts, in which issues of ownership, land boundaries, obligations, and evidence of the noble origins of the families were examined. Their primary task was to remember the “real” facts, i. e. the old ones. They did not attend the courts often, but, if necessary, the court officials would go and question them. Interestingly, the personal names of the old people who testified at courts were written down extremely rarely and for some reason these people usually remained anonymous. In addition, their age and the exact number of the old people who participated were rarely indicated. Some sources allow us assuming that in the courts, the old people were not only witnesses who remembered a lot and could speak about the past; they also represented the old customary law. At that time, the GDL courts were characterized by formalism, various customary rituals that distinguished between the examined events and emphasized their significance. Perhaps the old people observed what was said in the courts and how the other members of the community behaved, ensuring that things were done according to the established ancient norms. Thus, alongside the written law of the GDL, elements of the customary law also existed.
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Pienaar, Gerrit. "The Methodology Used to Interpret Customary Land Tenure." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 15, no. 3 (May 29, 2017): 152. http://dx.doi.org/10.17159/1727-3781/2012/v15i3a2506.
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Customary land tenure is normally not based on codified or statutory sources, but stems from customary traditions and norms. When westernised courts have to interpret and adjudicate these customary traditions and norms, the normal rules of statutory interpretation cannot be followed. The court has to rely on evidence of the traditional values of land use to determine the rules connected to land tenure. Previously courts in many mixed jurisdictions relied on common or civil law legal principles to determine the nature of customary land tenure and lay down the principles to adjudicate customary land disputes among traditional communities, or between traditional and westernised communities in the same jurisdiction. Many examples of such westernised approach can be found in case law of Canada and South Africa. The interpretation of the nature of customary land tenure according to common law or civil law principles has been increasingly rejected by higher courts in South Africa and Canada, e.g. in Alexkor Ltd v The Richtersveld Community 2004 5 SA 469 (CC) and Delgamuukw v British Columbia 1997 3 SCR 1010. This paper explores the methodology the courts should follow to determine what the distinctive nature of customary land tenure is. As customary land tenure is not codified or based on legislation, the court has to rely, in addition to the evidence of indigenous peoples, on the expert evidence of anthropologists and sociologists in determining the nature of aboriginal title (in Canada) and indigenous land tenure (in South Africa). The court must approach the rules of evidence and interpret the evidence with a consciousness of the special nature of aboriginal claims and the evidentiary difficulties in proving a right which originates in times where there were no written records of the practices, customs and traditions engaged in. The court must not undervalue the evidence presented simply because that evidence does not conform precisely with the evidentiary standards that would be applied in, for example, a private law tort case.
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Kaya, Halil Dincer, and Engku Ngah S. Engkuchik. "The Perception of Corruption Among Retailers in Central Asia and Eastern Europe During and After the 2008 Crisis." SocioEconomic Challenges 5, no. 2 (2021): 70–80. http://dx.doi.org/10.21272/sec.5(2).70-80.2021.
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In this study, we examine how the 2008-2009 Global Crisis has affected the informal payments/gifts paid by retailers in Eastern Europe and Central Asia. We look at the overall incidence of bribes, the incidence of bribes in customs/imports, the incidence of bribes in courts, and the incidence of bribes in tax payments. We compare the crisis period to the post-crisis period and found that these firms believed that the incidence of bribes went down significantly after the crisis ended. When we differentiate the retailers with respect to size, structure, legal form, gender of the owners, gender of the top manager, and whether or not they held an international quality certification, we found that, the results hold for all classifications of retailers. When we go into more detail and examine the incidence of bribes in customs/imports, courts, and taxes/tax collection, we found that the respondents saw a significant drop in the incidence of bribes in all areas after the crisis ended. However, our results show that, for bribes in customs/imports, the results do not hold for some of the classifications (i.e. medium-sized and the largest small firms, the firms that are part of a larger firm, the shareholding firms trading in the market, the partnerships, and the firms with an internationally recognized quality certification). For bribes in courts, the results do not hold for the largest small firms and the partnerships. For bribes in taxes/tax collection, the results do not hold for the partnerships and the firms with a quality certification. Our findings are consistent with the low rankings of these countries in Transparency International’s annual Corruption Perception Index data. Our findings are also consistent with previous studies’ findings that document high-levels of corruption in developing (or less developed) nations.
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O’Dowd, Mary. "Women and the Irish chancery court in the late sixteenth and early seventeenth centuries." Irish Historical Studies 31, no. 124 (November 1999): 470–87. http://dx.doi.org/10.1017/s002112140001436x.
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Of all the crown courts in sixteenth- and seventeenth-century Ireland, the chancery court has received the most favourable judgement from historians. Through its exercise of equity, the chancery court has been perceived as a mediator between English common law and Gaelic customary law. Equity provided the chancellor with the possibility of considering a judgement from the point of view of ‘reason and conscience’, to ensure what W. J. Jones has called the ‘protection of the innocent from the ruthless specifications’ of common law courts. In Irish terms this meant that the chancellor was prepared to consider Gaelic forms of partible inheritance from the standpoint of equity. In Gaelic society land descended according to a variety of customs which, it was argued in chancery, had been observed ‘time out of mind’ in a particular family or region and therefore in fairness or equity might be upheld even if they were contrary to common law practice.This benign view of the Irish chancery court’s attitude to Gaelic customary law has much in common with the attitude of the English chancery court towards women. Historians of early modern England have portrayed chancery as a judicial forum which provided women with legal redress which would have been denied them at common law. Female litigants in the sixteenth-century English chancery court included single, widowed and married women. Under common law, only single women and widows were entitled to legal representation in their own right. Married women, as femmes couvertes, were legally merged with their husbands on marriage, and so could not bring cases in their own name at common law. In the English chancery court, however, a small number of married women were permitted at the discretion of the chancellor to sue on their own without their husbands. In the course of the sixteenth century the English chancery also contributed to the extension of the legal franchise of women.
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Protsenko, Iryna. "Contemporary problems of the application of international treaties and international customs in the domestic law of Ukraine." Yearly journal of scientific articles “Pravova derzhava”, no. 32 (2021): 456–65. http://dx.doi.org/10.33663/0869-2491-2021-32-456-465.
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Almost twenty-five years have passed since the adoption of the Constitution of Ukraine, but during this time the legislator has not made the necessary changes and additions to Article 9 of this regulatory legal act. This article of the Constitution regulates the issue of the place of an international treaty in the legal system of Ukraine, however, this regulation is imperfect and in practice gives rise to a number of conflicts. In particular, according to Article 9 of the Constitution of Ukraine, only those international treaties of Ukraine are recognized as part of the national legislation of Ukraine, the consent to the binding of which is provided by the Verkhovna Rada of Ukraine. Thus, the place of intergovernmental and interdepartmental international treaties in the system of sources of law of Ukraine is uncertain, and therefore the rules for their application are not regulated. In addition, the question of the ratio of the norms of the aforementioned international treaties with the norms of the Law of Ukraine remains unanswered. The supreme body of the judiciary of Ukraine proposed ways to overcome these problems, but they are not sufficiently reasoned. Despite this, another long-standing problem of Ukrainian law is the problem of determining the rules for the operation of international customs in Ukraine. A number of modern examples of the application of international custom to the regulation of public relations in Ukraine demonstrate to us an urgent need to formulate a detailed legislative regulation of this issue. For example, we are talking about numerous cases of citizens of Ukraine appealing to domestic courts with claims against the Russian Federation, as a result of which, despite the principle of state jurisdictional immunity enshrined in Ukrainian legislation, not only civil proceedings begin, but even claims are satisfied. The basis for this is a number of decisions of the European Court of Human Rights (for example, the decision in the case "Oleinikov v. Russia"), which states that the provisions of the United Nations Convention on Jurisdictional Immunities of States and Their Property 2004 and the European (Basel) Convention on State Immunity 1972 can be applied as international custom. So, an interesting legal incident has developed in Ukraine: in the absence of legislative regulation of the issue of the place of international custom in the legal system of Ukraine, domestic courts turn to it on the basis of decisions of the ECHR, which, according to Ukrainian legislation, is the source of Ukrainian law. At the same time, individual rules for the operation of the customs of international humanitarian law in Ukraine were regulated at the level of a subordinate normative legal act - a special Instruction approved by the Ministry of Defense of Ukraine. By adopting it, the legislator implemented the basic norms, including the usual ones, of international humanitarian law, which should have greatly facilitated the procedure for their application by Ukrainian military personnel. However, the Instruction does not reflect certain customary norms of international humanitarian law quite correctly, which can cause serious problems in practice. In addition, the legally not precisely formulated Art. 483 of the 2001 Criminal Code of Ukraine, which provides for liability only for violation of the laws and customs of war stipulated by international treaties, the consent to be bound by which was provided by the Verkhovna Rada of Ukraine, but not by international customs, of which there are quite a few in this area.
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Muhammad, Hanifah Salma, and Malik Ibrahim. "Kompetensi Pengadilan Agama dalam Menangani Perkara Warisan Beda Agama (Analisis Perkara 1854/Pdt.G/2013/PA.Plg)." Mahakim: Journal of Islamic Family Law 7, no. 1 (January 1, 2023): 67–89. http://dx.doi.org/10.30762/mahakim.v7i1.184.
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This article discusses the competence of religious courts in adjudicating disputes over interfaith inheritance between Muslims and non-Muslims. This can happen inseparably from the social and cultural conditions of people in Indonesia who are pluralism with various backgrounds such as ethnicity, customs, different languages, and belief or religious factors. But on the other hand, there are differences in views between the fuqaha regarding the heritage of different religions. If the heir and heir, both the heir as the plaintiff and the defendant, have differences in religion, then the practice of law enforcement in the court against the inheritance case creates a dispute over competence between the religious court and the district court. This study examines through legislation, legal literature in accordance with the research being discussed and uses Islamic law to answer the author's problem formulation by analyzing decision number 1854 / Pdt.G / 2013 / PA.Plg. The results of the research that can be concluded are that when viewed from a juridical point of view, religious courts are authorized to adjudicate cases of disputes over inheritance between religions. This can happen because it is based on jurisprudence 51K/AG/1999. The function of jurisprudence can be used as the best way given by judges to communities that have family pluralism as a solution in resolving cases of inheritance disputes between religions. However, when viewed from the normative side of Islamic law, religious courts are authorized to adjudicate inheritance disputes with parties of different religions. This can happen because it is based on the interpretation of Yusuf Al-Qardawi and the ijtihad of the supreme court for a sense of justice for families whose pluralism of beliefs. The inheritance is not counted as heirs but is counted as a mandatory will of no more than 1/3 part.
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Matvienko, G. V. "Legal Disputes on the Assessment of Customs Value: Trends in the Courts Rulings." Rossijskoe pravosudie 3 (February 26, 2021): 81–91. http://dx.doi.org/10.37399/issn2072-909x.2021.3.81-91.
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The article presents the findings of scientific and practical analysis of court decisions made following the review of disputes on the assessment of customs value over the past few years. The author comes up with suggestions aimed at improving legislation and unification of law enforcement practice in Russia and throughout the territory of the Eurasian Economic Union.
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Zulfadli, Zulfadli, and Muchlis Aziz. "THE IMPACT OF DIVORCE OUTSIDE THE RELIGIOUS COURT ON THE SOCIAL LIFE OF THE COMMUNITIES IN ACEH UTARA AND ACEH BARAT." JURNAL AL-IJTIMAIYYAH 10, no. 1 (June 30, 2024): 28. http://dx.doi.org/10.22373/al-ijtimaiyyah.v10i1.23859.
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Divorce is a final path that must be taken in resolving household disputes and turmoil. If the cracks in the household can no longer be reconciled, it is feared that it will cause division between the two families. The objectives of this study are to understand the law of divorce in religious courts and outside of them, the factors causing divorce outside the religious courts, and to identify the impacts of divorce outside the religious court on the social life of the communities in Aceh Utara and Aceh Barat. This research uses a qualitative method, where the researcher thoroughly examines the facts found in the research locations according to the problem focus directly, then presents and discusses the analysis results. To obtain accurate and reliable data, data collection was carried out through observation, interviews, and documentation. The results show: (1) in Islamic law, divorce performed outside the religious court is valid, while the law of divorce outside the religious court is not valid under Indonesian law and the Marriage Law as well as the Compilation of Islamic Law; (2) the factors causing the community to divorce outside the religious court are due to adhering to the opinions of the Imam Mazhab and local ulama, due to customs, economic conditions, ignorance/lack of understanding of regulations, laziness in processing, and indifference to divorce laws; and (3) the impacts felt by the community after divorcing outside the religious court are not receiving the iddah rights, difficulty in remarrying. After all, they do not have a divorce certificate, as the KUA does not permit because they are still considered the wife of the first husband. Furthermore, they cannot claim joint property, hadhonah, and child support. This is consistent with what has happened to the people of Aceh Utara and Aceh Barat. Additionally, problems arising from divorce outside the religious court are related to children and their education, lack of legal certainty, asset distribution, inheritance, creating priority for the husband over the wife, the husband being arbitrary towards the wife, and child custody.
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Ignatyeva, E. Yu. "Judicial law-making in Russia on land issues in the second half of the XIX – early XX centuries in the process of applying customary law." Institute Bulletin: Crime, Punishment, Correction 13, no. 2 (July 19, 2019): 213–21. http://dx.doi.org/10.46741/2076-4162-2019-13-2-213-221.
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The article examines the impact of the norms of customary law applied in the peasant environment in the second half of the 19th century to the judicial law-making of land reformers. The purpose of the article is to identify the legal grounds that were taken into account when drafting the legislation of the Peasant Reform of 1861 to create an adequate and at the same time effective justice system for peasant land issues in the context of fundamental social transformations caused by the abolition of serfdom and the need to develop capitalist relations in Russia. The reformers assumed that the rural community would successfully replace the authority of the landowner, become the lower unit of local government and the state taxation system. The legalization of the legal customs of the peasants was taken as a forced temporary measure, necessary in the early stages of the development of peasant self-government; The existence of adaptive mechanisms in the established customary legal system to preserve the viability and stability of the peasant community was taken into account. The main function of the peasant community was the distribution of land and the settlement of land use relations among its members. The created peasant class estate courts were also considered as temporary, later as the peasants became closer to other estates, their subordination to general civil laws was envisaged. The volost courts guided by custom and law became the main element of rural selfgovernment and the mechanism for the implementation of customary law in land relations. The main subject of this right was identified peasant community, which resolved issues of land use, land relations, economic and social conflicts. However the legislator did not clearly define that the difference in the proceedings of the volost and general courts consisted in the property level of the cases and the limit of punishments – only certain categories of different legal matters were listed that were subject to the volost court. Created by the Judicial Reform of 1864 the all-tribal peace courts could consider the same minor offenses on the part of the peasants using the rules of the local customary law “according to conscience” as the volost courts but at a higher property level. Priority was given, as in the county court, to the reconciliation of the parties. The increase in the number of claims on land issues in the late XIX – early XX centuries in the conditions of the development of the land market and the increase in real estate operations was reflected by the increased demand of the peasants for the consideration of land issues and related property relations by courts on the basis of official legislation.
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Lingaas, Carola. "Indigenous Customary Law and Norwegian Domestic Law: Scenes of a (Complementary or Mutually Exclusive) Marriage?" Laws 11, no. 2 (March 4, 2022): 19. http://dx.doi.org/10.3390/laws11020019.
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Articles 27 and 34 of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) recognise Indigenous Peoples’ laws. Art. 34 gives Indigenous Peoples the right to maintain their juridical systems or customs in accordance with international human rights standards. Although the UNDRIP is soft law, its core is arguably customary law and, therefore, a binding source of law. For States with Indigenous People, such as Norway, the UNDRIP is of paramount importance, from a legal, political, and not least moral perspective. This paper discusses norm hierarchies and tensions that are created in the meeting between the Indigenous customary law of the Sámi and statutory domestic Norwegian law. The introduction of customary, commonly unwritten, Indigenous rules into the judicial portfolio of a State creates an obvious challenge: what is their legal status? Can Indigenous law set aside domestic statutory norms? Some might argue that due to historical wrong, Indigenous law should always take precedence when domestic law conflicts with it. While Norwegian domestic law acknowledges the precedence of certain core human rights treaties over domestic laws, the same is not valid for Indigenous rights. How then should Indigenous custom be dealt with before a court of law, and how do the different legal systems relate to each other? This paper is foremost based on theoretical, to a lesser degree also on empirical material. It discusses on a general level the relationship between different legal systems within the same State and, on a specific level, the dealing of the Norwegian courts with Sámi Indigenous laws and customs.
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HOEKMAN, BERNARD M., and PETROS C. MAVROIDIS. "Nothing Dramatic (… regarding administration of customs laws)." World Trade Review 8, no. 1 (January 2009): 31–44. http://dx.doi.org/10.1017/s1474745608004242.
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AbstractThis paper discusses the 2005 dispute between the European Community (EC) and the United States (US) regarding the customs classification of two specific products and the ambit of Art. X GATT (Publication and Administration of Trade Regulations). The Dispute Settlement Panel and the Appellate Body (AB) essentially upheld the position advocated by the EC, with one exception that is of no practical import, as the EC had already modified its regime. While the AB followed prior case law, it added two new findings. First, the WTO-consistency of laws can be challenged under Art. X GATT if they concern the implementation or application of laws concerning customs administration and enforcement. Second, the obligation included in Art. X.3(b) GATT to establish tribunals or procedures to review and correct administrative actions relating to customs matters concerns courts of first instance only. Thus it is quite possible that their decisions might not be uniform, and absence of uniformity at this level is not a violation of Art. X.3(b).
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Speed, Shannon, María Teresa Sierra, Lynn Stephen, Jessica Johnson, and Heike Schaumberg. "Women’s Rights and Sovereignty/Autonomy." Journal of Legal Anthropology 1, no. 3 (September 1, 2013): 360–93. http://dx.doi.org/10.3167/jla.2013.010305.
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In recent years in both the United States and Latin America, indigenous peoples have taken increasing control over local justice, creating indigenous courts and asserting more autonomy in the administration of justice in their tribes, regions, or communities. New justice spaces, such as the Chickasaw District Courts in Oklahoma and the Zapatista Good Governance Councils in Chiapas, work to resolve conflict based largely on indigenous ‘customs and traditions.’ Many of the cases brought before these local legal bodies are domestic cases that directly involve issues of gender, women’s rights and culture. Yet the relationship between ‘indigenous traditions’ and women’s rights has been a fraught one. This forum article considers how these courts emerged in the context of neoliberalism and whether they provide new venues for indigenous women to pursue their rights and to challenge gendered social norms or practices that they find oppressive.
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Ignateva, Ekaterina, Natalya Vasileva, and Dmitriy Pashentsev. "The peculiarities of applying customary law to marriage and family disputes by volost courts in the second half of 19th – early 20th centuries." OOO "Zhurnal "Voprosy Istorii" 2023, no. 8-2 (August 1, 2023): 92–97. http://dx.doi.org/10.31166/voprosyistorii202308statyi50.
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The article analyzes the peculiarities of the historical development of the volost courts in the Russian Empire of the second half of the 19th - early 20th centuries in terms of considering marriage and family disputes. The features of interaction between customary law and general civil legislation relevant for the specified period and the shortcomings related to the procedural aspects of the performance by volost courts of their functions have been identified. It is concluded that the post-reform period was a transitional stage from the legal customs regulating the life of peasants by customary law to the corresponding laws and regulations and the subsequent formation of the branch of family law.
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Chasovnikova, Olga, and Danila Bolotin. "HISTORICAL AND LEGAL ANALYSIS OF THE SOURCES OF CRIMINAL PROCEDURE LAW OF ANCIENT RUSSIA IN THE X–XI CENTURIES." LAW. SAFETY. EMERGENCY SITUATIONS 2023, no. 4 (January 29, 2024): 14–22. http://dx.doi.org/10.61260/2074-1626-2024-2023-4-14-22.
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The role of legal custom and princely laws in regulating criminal law relations at the stage of the emergence of Russian statehood is shown, the main scientific approaches to the «Russian Law» as a regulator of criminal procedural relations and the foundations of the subsequent written code of laws are analyzed. The influence of church statutes of the X–XI centuries on the further development of criminal justice in the Russian state is shown, articles of Russian Truth containing elements of modern criminal procedure are analyzed. The authors analyze the articles of the Pskov Court charter devoted to the types of courts and judicial evidence. Russian «Russian Law» has been concluded about the significance of these normative legal acts in the history of criminal procedure law of Ancient Russia, that the «Russian Law» contained norms regulating criminal procedural relations and became the legal basis for the compilation of the Russian Truth. Russian Truth, the key source of the criminal procedure law of Russia in the XI century,
was formed as a result of the systematization of legal customs, the norms of the «Russian Law», and the reception of some norms of byzantine and ecclesiastical law.