To see the other types of publications on this topic, follow the link: Dialogue between courts.
Journal articles on the topic 'Dialogue between courts'
Create a spot-on reference in APA, MLA, Chicago, Harvard, and other styles
Consult the top 50 journal articles for your research on the topic 'Dialogue between courts.'
Next to every source in the list of references, there is an 'Add to bibliography' button. Press on it, and we will generate automatically the bibliographic reference to the chosen work in the citation style you need: APA, MLA, Harvard, Chicago, Vancouver, etc.
You can also download the full text of the academic publication as pdf and read online its abstract whenever available in the metadata.
Browse journal articles on a wide variety of disciplines and organise your bibliography correctly.
1
Podolska, Anna. "Between Informal Dialogue and Official Criticism." International Community Law Review 21, no. 5 (November 12, 2019): 409–20. http://dx.doi.org/10.1163/18719732-12341410.
Full textAbstract:
Abstract There are various forms of jurisdictional dialogue. In addition to drawing from the case law of another court or seeking direct assistance of such another court in passing the judgment, we can notice in practice situations when by issuing a verdict the courts are communicating with each other. The rulings of the Bundesverfassungsgericht, the Court of Justice of the European Union, and the European Court of Human Rights regarding the free movement of judgments in the European Union and protection of fundamental rights are the example of such activities. Each of these bodies was interpreting separately the extent to which the mechanisms of recognising and executing the judgments may interfere with the level of protection of fundamental rights. A common conclusion concerns assigning the priority to protection of fundamental rights, while individual bodies were determining differently the standards of such protection. The analysed judgments can be construed as a communication between these bodies. Although no direct discussion takes place between these courts, this is still a form of interaction which affects the development of the case law and understanding of the boundaries of mutual recognition of judgments and protection of human rights within judicial proceedings.
2
Amos, Merris. "THE DIALOGUE BETWEEN UNITED KINGDOM COURTS AND THE EUROPEAN COURT OF HUMAN RIGHTS." International and Comparative Law Quarterly 61, no. 3 (July 2012): 557–84. http://dx.doi.org/10.1017/s0020589312000206.
Full textAbstract:
AbstractIn this article the scope for dialogue between UK courts and the European Court of Human Rights is considered in theory and in practice. Having demonstrated that meaningful dialogue does take place in certain circumstances, the author considers the impact of dialogue and questions whether or not there can be any further expansion in dialogue whilst avoiding negative outcomes such as confusion over the creation of human rights norms and a loss in legitimacy for national courts adjudicating upon human rights issues.
3
Mitsilegas, Valsamis. "Judicial dialogue in three silences." New Journal of European Criminal Law 9, no. 1 (March 2018): 38–42. http://dx.doi.org/10.1177/2032284418761062.
Full textAbstract:
The Taricco litigation before the Court of Justice and the Italian Constitutional Court has generated a number of fundamental questions about the relationship between EU law and national constitutional law and about the impact of EU law on domestic criminal justice systems. The ensuing dialogue between the two Courts has resulted in a considerable degree of mutual accommodation, while leaving a number of issues unresolved. The aim of this comment is to contextualize the Taricco litigation by focusing not on what the Courts have said, but on what the Courts have actually chosen to omit or sideline in their direct conversation, focusing thus on judicial dialogue via the two Courts’ silences. Three silences will be analysed here, one for each of the rulings in the Taricco litigation in sequence.
4
Novak, Stjepan. "DIJALOZI IZMEĐU USTAVNIH SUDOVA DRŽAVA ČLANICA EUROPSKE UNIJE I SUDA EUROPSKE UNIJE." Pravni vjesnik 36, no. 3-4 (2020): 113–36. http://dx.doi.org/10.25234/pv/10408.
Full textAbstract:
In the context of the discourse on constitutional identities, national constitutional courts enter into various forms of dialogue with the Court of Justice of the EU. After having engaged for an extended period of time in exclusively indirect dialogues that were more or less successful and were realised through their own practices, national constitutional courts started making use of the possibility offered to them pursuant to Article 267 of the Treaty on the Functioning of the European Union, i.e., the preliminary ruling procedure. The paper aims to prove that the dialogues which constitutional courts engage in with the Court of Justice of the EU are the most successful forms of their communication. For that purpose the paper compares these dialogues with indirect forms of communication between constitutional courts and the Court of Justice of the EU. It is in this context that the paper, following introductory considerations in the second part, considers the concept of constitutional identity from the viewpoint of the Court of Justice of the EU and the viewpoint of national constitutional courts. The third part of the paper analyses different forms of indirect dialogue between constitutional courts and the Court of Justice of the EU and draws conclusions about their effectiveness. The fourth part analyses particular procedures instituted before the Court of Justice of the EU by constitutional courts and points out the pros and cons of these procedures. Finally, the paper concludes that the procedures instituted by national constitutional courts pursuant to Article 267 of the Treaty on the Functioning of the European Union are the most direct and the most efficient forms of their communication with this Court.
5
Stival, Mariane Morato, Marcos André Ribeiro, and Daniel Gonçalves Mendes da Costa. "The Internationalization Of Human Rights And The Importance Of Normative Dialogues Between International And National Courts." Revista Jurídica 17, no. 2 (December 4, 2017): 137. http://dx.doi.org/10.29248/2236-5788.2017v17i2.p137-149.
Full textAbstract:
This article intends to analyze in the context of the complexity of the process of internationalization of human rights, the definitions and tensions between cultural universalism and relativism, the essence of human rights discourse, its basic norms and an analysis of the normative dialogues in case decisions involving violations of human rights in international tribunals such as the European Court of Human Rights, the Inter-American Court of Human Rights and national courts. The well-established dialogue between courts can bring convergences closer together and remove differences of opinion on human rights protection. A new dynamic can occur through a complementarity of one court with respect to the other, even with the different characteristics between the legal orders.
6
Dzehtsiarou, Kanstantsin, and Noreen O'Meara. "Advisory jurisdiction and the European Court of Human Rights: a magic bullet for dialogue and docket-control?" Legal Studies 34, no. 3 (September 2014): 444–68. http://dx.doi.org/10.1111/lest.12025.
Full textAbstract:
Protocol 16 ECHR will provide for an extension of the advisory jurisdiction of the European Court of Human Rights (ECtHR), enabling highest national courts to request advisory opinions on questions of principle concerning the interpretation of the European Convention on Human Rights (ECHR) or its protocols. This extension of the ECtHR's advisory jurisdiction aims to achieve two goals: a reduction in the ECtHR's excessive docket, and the enhancement of dialogue between the ECtHR and (highest) national courts. While the aims of this reform initiative are laudable, we argue that Protocol 16 is likely to fail to achieve its objectives. Our analysis suggests that rather than facilitating the Court's adjudicatory function, extended advisory jurisdiction has the potential to impact on the Court's constitutionalist function in a manner that can be better achieved through the Court's contentious cases. The burden that this procedure will place on the Court's already overstretched resources would risk delays to contentious cases and potentially undermine judicial comity should requests for advisory opinions be declined. Furthermore, evidence of ‘constructive’ dialogue between highest national courts and the ECtHR is emerging in contentious cases without the need for a reformed advisory opinions mechanism. Rather than achieving its objectives, Protocol 16 risks exacerbating the Court's backlog and nullifying the positive effects of advisory opinions on dialogue.
7
Hennigar, Matthew A. "Expanding the ‘Dialogue’ Debate: Federal Government Responses to Lower Court Charter Decisions." Canadian Journal of Political Science 37, no. 1 (March 2004): 3–21. http://dx.doi.org/10.1017/s0008423904040041.
Full textAbstract:
The inter–institutional dynamics between courts and elected governments under the Canadian Charter of Rights and Freedoms have recently, and widely, been characterized as a "dialogue" over constitutional meaning. This article seeks to expand the systematic analysis of "dialogue" to lower courts of appeal, using Canadian federal government responses as a case study. In the process, the article clarifies the hotly debated operational definition of this metaphor, and develops two methodological innovations to provide a comprehensive measure of dialogue. The article's findings suggest that there is more dialogue with lower courts than with the Supreme Court of Canada. However, the evidence indicates that dialogue in the form of government appeals to higher courts–which explicitly signal the government's disagreement with the lower court–is as prevalent as legislative sequels, and the dominant form following judicial amendment.
8
Frese, Amalie, and Henrik Palmer Olsen. "Spelling It Out−Convergence and Divergence in the Judicial Dialogue between cjeu and ECtHR." Nordic Journal of International Law 88, no. 3 (August 29, 2019): 429–58. http://dx.doi.org/10.1163/15718107-08803001.
Full textAbstract:
In this article we investigate the relationship between the Court of Justice of the European Union and the European Court of Human Rights as it manifests in explicit cross-references between the two Courts’ jurisprudence. The analysis detects cross-references, how they are used and indications of converge or divergence in the jurisprudence through their explicit citations and references. Our dataset consists of the entire corpus of judgments from both Courts from 2009 (when the EU Charter on Fundamental Rights came into force and until the end of 2016. On the basis of a content search for references to the other Court in both corpora we detect all their cross-references. We find that 1) the Courts’ use each other’s case law surprisingly little, but when they do, it is 2) primarily within the legal domains of criminal justice and immigration policies, and 3) displaying convergence towards the jurisprudence of the other Court.
9
Bussey, Erica. "Constitutional dialogue in Uganda." Journal of African Law 49, no. 1 (April 2005): 1–23. http://dx.doi.org/10.1017/s0021855305000021.
Full textAbstract:
The paper considers several recent constitutional cases in Uganda, including Constitutional Petition No. 5 of 2003, which struck down several sections of the Political Parties and Organisations Act, aimed at suppressing opposition party activity, and Constitutional Appeal No. 1 of 2002, in which the Supreme Court held that a constitutional amendment which had enabled the 2000 Referendum on political systems was unconstitutional, as examples of an emerging constitutional dialogue in Uganda. The paper examines the history of constitutionalism in Uganda, the 1995 Constitution, and recent constitutional cases in order to analyse the tools available within the Ugandan constitutional framework that make a meaningful dialogue between the courts and the legislature possible, and the ways in which these have, or have not been used in recent decisions. The paper discusses dialogue theory with an emphasis on the use of dialogue in the comparative (and particularly Canadian) context and considers whether dialogue is possible in nondemocratic systems. The recent cases indicate that not only is there the beginnings of a process of dialogue in Uganda, but that this dialogue may in fact be more important in some senses than it is within the democratic framework, since given the lack of open debate in Parliament and other fora, the dialogue between the courts and the legislature is often the only place in which important issues can be debated. However, recent developments, such as Museveni's reaction to the court's decision in Constitutional Petition No. 3 of 2000 which nullified the results of the 2000 Referendum, show how fragile this process of dialogue may be.
10
TRAISBACH, KNUT. "A transnational judicial public sphere as an idea and ideology: Critical reflections on judicial dialogue and its legitimizing potential." Global Constitutionalism 10, no. 1 (March 2021): 186–207. http://dx.doi.org/10.1017/s2045381720000295.
Full textAbstract:
AbstractThis article sheds a critical light on judicial dialogue when its purpose and meaning are taken beyond cross-fertilization and comparative reasoning. It cautions against a conceptualization of judicial dialogue as a means to foster commonalities between courts and to legitimize judicial governance. The argument develops from an idealized notion of a ‘transnational judicial public sphere’. In this sphere, domestic, regional and international courts ideally form common opinions through dialogue and pursue common purposes. The danger of this understanding is to construct a new paradigm that not only overlooks important differences in the interest, influence and opinion of courts, but also overstates the socio-normative significance of exchanges between courts and of judicial governance in general. The critical potential of judicial dialogues lies less in the formation of commonalities or in the legitimization of judicial authority than in bringing alternatives and a plurality of opinions to the fore.
11
Almeida, Paula Wojcikiewicz. "The Asymmetric Judicial Dialogue Between the ICJ and the IACtHR: An Empirical Analysis." Journal of International Dispute Settlement 11, no. 1 (November 27, 2019): 1–19. http://dx.doi.org/10.1093/jnlids/idz015.
Full textAbstract:
Abstract This article evaluates the judicial dialogue between the International Court of Justice (ICJ) and the Inter-American Court of Human Rights (IACtHR). It aims to discuss, on the one hand, the use of the ICJ jurisprudence in the case law of the Inter-American Court and the use of the IACtHR jurisprudence in the case law of the ICJ, on the other hand. Being aware that the ICJ and the IACtHR are placed in different levels and possess structural differences, the judicial dialogue between these two courts is inevitably marked by asymmetries. The empirical analysis of the interaction between the ICJ and the IACtHR aims to identify the functions of the judicial dialogue, which encompass the general cross-fertilization function and the function of enhancing the persuasiveness, authority or legitimacy of individual judicial decisions.
12
Martinico, Giuseppe. "The “Polemical” Spirit of European Constitutional Law: On the Importance of Conflicts in EU Law." German Law Journal 16, no. 6 (December 2015): 1343–74. http://dx.doi.org/10.1017/s2071832200021179.
Full textAbstract:
Recently, scholars have argued of the necessity of going beyond “judicial dialogues” and “conflict-and-power” approaches to the analysis of the role of national Constitutional Courts in the Union. On the one hand, there are risks connected to a “too welcoming an approach by national constitutional courts to EU law”; on the other hand, it is possible to criticize both the Court of Justice of the EU (CJEU) and some national Constitutional Courts for other, less cooperative, decisions. I share this cautious approach for many reasons, and primarily because the preliminary ruling mechanism does not exhaust all the possible means of communication between constitutional courts and the CJEU. For instance, what Komárek calls “parallel references” can serve, in some circumstances, as a technique of alternative (or hidden) dialogue, that has favored a sort of “remote dialogue” over the years. My sole point of disagreement with this scholarly position is over the role of conflicts in this scenario. Whilst Komárek seems to confine conflicts to phenomena of mere resistance or to “‘cold’ strategic considerations,” in this work I am going to adopt a much broader idea of conflict, which goes beyond mere “conflicts and power games.”
13
Morales Yago, Francisco José. "El diálogo entre el Tribunal Europeo de Derechos Humanos y los tribunales españoles : coincidencias y divergencias = Dialogue between European Court of Human Rigths and Spanish courts." Teoría y Realidad Constitucional, no. 32 (July 1, 2013): 139. http://dx.doi.org/10.5944/trc.32.2013.11783.
Full textAbstract:
El concepto de «diálogo entre Tribunales» se ha empleado con muy diversos sentidos. En el presente trabajo, tomando en cuenta la jurisprudencia del Tribunal Europeo de Derechos Humanos y de los Tribunales españoles, el concepto se entiende como la interrelación recíproca entre Tribunales de distintos ordenamientos, con consecuencias prácticas reflejadas en las resoluciones de esos Tribunales, a la vista de la jurisprudencia de otros. Estas consecuencias pueden ir desde la exposición de críticas o soluciones alternativas, a la modificación, o incluso revisión, de la propia jurisprudencia anterior.The concept of «dialogue between courts» has been used with different meanings. In this article, and based on the case law of both the European Court of Human Rights and Spanish courts, «dialogue between courts» is understood as the reciprocal interrelations between courts of different legal orders, with practical consequences for their judgments, in view of the case law of the other courts. These consequences may range from offering citicisms or alternative solutions, to amending,, or even overruling their previous case law.
14
Bonelli, Matteo. "The Taricco saga and the consolidation of judicial dialogue in the European Union." Maastricht Journal of European and Comparative Law 25, no. 3 (June 2018): 357–73. http://dx.doi.org/10.1177/1023263x18773046.
Full textAbstract:
In December 2017, the Court of Justice of the European Union delivered its awaited decision on the Taricco II case, responding to a preliminary reference from the Italian Corte Costituzionale. The latter, unhappy with the outcome of the earlier Taricco I decision, asked for a re-interpretation of Article 325 TFEU and threatened the Court of Justice with the possible activation of its controlimiti doctrine. The CJEU partially ‘corrected’ its previous ruling and prevented an open conflict between EU law and Italian constitutional law. This case note discusses the saga and its three episodes against the background of the growing constitutional conversation between top European courts. It argues that Taricco is a positive episode of judicial dialogue and may further contribute to its consolidation: on one hand, constitutional courts are increasingly willing to ‘play the game’ and refer to the CJEU under Article 267 TFEU; on the other, the Court of Justice seems more reactive than in the past to constitutional courts’ claims and now considers them with increasing attention and detail. Finally, the case note reflects on the partially diverging languages for constitutional dialogue: national courts use the language of constitutional identity, while the CJEU prefers to refer to the ‘common constitutional principles of the EU’.
15
Rautenbach, Christa, and Lourens du Plessis. "In the Name of Comparative Constitutional Jurisprudence: The Consideration of German Precedents by South African Constitutional Court Judges." German Law Journal 14, no. 8 (August 1, 2013): 1539–77. http://dx.doi.org/10.1017/s207183220000239x.
Full textAbstract:
Judges involved in constitutional adjudication often engage in comparative analyses of foreign cases. The judges of South Africa's Constitutional Court [hereinafter Constitutional Court] do so, too. The phenomenon has been given many names such as “transjudicialism,” “transjudicial communication,” “constitutionalist dialogue,” “judicial globalization,” “constitutional cross-fertilization,” “transnational contextualization,” “globalization of judgment,” “globalization of national courts,” “constitutional borrowing,” “constitutional comparativism,” and “judicial comparativism.” All these terms have merit, especially within their appropriate context, but for the purposes of this contribution we will use the term “comparative constitutional jurisprudence” to name the phenomenon we wish to describe and discuss. First, in the South African context, the terms “dialogue,” “cross-fertilization,” and “globalization” do not reflect the true nature of the exercises in drawing comparisons in the South African Constitutional Court. These terms imply a reciprocal dialogue between two or more courts from different jurisdictions. It is evident, however, that the South African Constitutional Court has been considering far more foreign jurisprudence than any non-South African constitutional court has been considering South African jurisprudence—in other words, this has largely been a case of one-way traffic. S v. Makwanyane, in many ways the inaugural decision of the Constitutional Court, contains 220 foreign case citations from 11 countries and three supranational courts. To our knowledge no other foreign court can boast a comparable statistic.
16
Ceretelli, Carlotta. "Abuse of Process: An Impossible Dialogue Between ICJ and ICSID Tribunals?" Journal of International Dispute Settlement 11, no. 1 (January 25, 2020): 47–68. http://dx.doi.org/10.1093/jnlids/idz028.
Full textAbstract:
Abstract In the backdrop of the proliferation of international courts, the abuse of process revealed its protean nature. Still a foreigner in the International Court of Justice’s (ICJ or the Court) jurisprudence, in investment treaty arbitration it has been shaped in different ways to face multiple forms of the improper use of judicial system. Recently, the cases Immunities and Criminal Proceedings and Application of the International Convention on the Elimination of All Forms of Racial Discrimination have offered two precious occasions of dialogue between ICJ and the tribunals established under the auspices of the International Centre for the Settlement of Investments Disputes (ICSID). Once compared the arguments made on the matter of abuse of procedure in the cases at hand with ICSID case law on treaty shopping and parallel proceedings, the scope of the present contribution will be to understand whether the abuse of process can really become the protagonist of a fruitful interaction between judicial organs.
17
Roach, Kent. "Common Law Bills of Rights as Dialogue between Courts and Legislatures." University of Toronto Law Journal 55, no. 3 (2005): 733–66. http://dx.doi.org/10.1353/tlj.2005.0027.
Full text
18
Farnelli, Gian Maria. "A Controversial Dialogue between International and Domestic Courts on Functional Immunity." Law and Practice of International Courts and Tribunals 14, no. 2 (August 24, 2015): 255–89. http://dx.doi.org/10.1163/15718034-12341293.
Full textAbstract:
The present contribution stems from a number of judicial decisions concerning immunity of State officials from foreign domestic jurisdiction, with specific regard to criminal jurisdiction. In particular, the article aims at analysing current trends concerning immunity of State officials from foreign domestic jurisdiction. In order to do so, an analysis of the customary rules concerning immunity of State officials, either personal or organic, is sketched out first of all, also taking into consideration the recent work of the International Law Commission on the topic in point. Subsequently, international and domestic case law are dealt with. In particular, the analysis considers the stance taken by international as well as domestic courts with regard to organic immunity in cases of international or common crimes. Lastly, some conclusions are drawn, also pointing towards some small openings in current case law so as to suggest a possible balance between competing claims.
19
Chmielarz-Grochal, Anna. "The Dialogue between the Supreme Administrative Court and the Constitutional Tribunal in the Preliminary Reference Procedure." Teisė 117 (December 28, 2020): 126–37. http://dx.doi.org/10.15388/teise.2019.117.8.
Full textAbstract:
The purpose of the article is to analyze how the Supreme Administrative Court implements the right of this court to apply to the Constitutional Tribunal, enshrined in the Constitution of the Republic of Poland, with a request to examine the constitutionality of the legal act applicable in a particular case. The emergence of this investigation is marked by a noticeable decrease in the number of requests submitted by administrative courts to investigate the constitutionality of a legal act, which encourages the investigation of the causes of this phenomenon. The prior application of the court for the constitutionality of a legal act encourages the analysis of a specific cooperation dialogue between the requesting court and the Constitutional Tribunal.
20
Chmielarz-Grochal, Anna. "The Dialogue between the Supreme Administrative Court and the Constitutional Tribunal in the Preliminary Reference Procedure." Teisė 117 (December 28, 2020): 126–37. http://dx.doi.org/10.15388/teise.2019.117.8.
Full textAbstract:
The purpose of the article is to analyze how the Supreme Administrative Court implements the right of this court to apply to the Constitutional Tribunal, enshrined in the Constitution of the Republic of Poland, with a request to examine the constitutionality of the legal act applicable in a particular case. The emergence of this investigation is marked by a noticeable decrease in the number of requests submitted by administrative courts to investigate the constitutionality of a legal act, which encourages the investigation of the causes of this phenomenon. The prior application of the court for the constitutionality of a legal act encourages the analysis of a specific cooperation dialogue between the requesting court and the Constitutional Tribunal.
21
Milej, Tomasz P. "Human Rights Protection by International Courts – What Role for the East African Court of Justice?" African Journal of International and Comparative Law 26, no. 1 (February 2018): 108–29. http://dx.doi.org/10.3366/ajicl.2018.0222.
Full textAbstract:
The present article argues that the East African Court of Justice (EACJ), although originally not conceived as a human rights body, has a role to play as a protector of human rights in the East African region. It underlines the contribution the EACJ could make in spelling out jurisprudential standards for human rights protection in the specific regional context and suggests enhancing judicial dialogue between the EACJ and increasingly assertive national courts of the East African Community Partner States. Drawing upon the existing jurisprudence of the EACJ, the article also discusses the treaty basis for the Court's human rights jurisdiction, the standard of review, the various doctrines the Court uses, the Court's accessibility, the time limits for individual references, the burden of proof and the nature of the EACJ's judgments.
22
Laffranque, Julia. "(Just) Give Me A Reason …" Juridica International 27 (September 30, 2018): 12–35. http://dx.doi.org/10.12697/ji.2018.27.02.
Full textAbstract:
Judicial systems often wrestle with whether to sacrifice always presenting thorough judicial reasoning for the sake of an effective leave-to-appeal system. The paper outlines issues of reference to the Luxembourg Court, particularly with regard to Estonian circumstances in light of the ECtHR judgment in Baydar v. the Netherlands. The interplay between EU law and the European Convention on Human Rights in this regard is considered first, along with the importance of giving reasons, courts’ authority, the different roles of domestic and European courts, the duty of referring questions to the CJEU and exemption, consequences of non-referral in EU law, the Strasbourg Court’s role in dialogue between national courts and the CJEU, etc. Examined next are such matters as influences on preliminary references in European Union law, summary reasoning and limits to the reasoning duty (especially with regard to the Ullens de Schooten case of the ECtHR), associated division of competencies between the Strasbourg and Luxembourg courts, and finally the reasoning of the ECtHR itself as good or bad example. The author then considers the Supreme Court of Estonia’s leave-to-appeal system and the national courts’ practice in relation to Baydar, concluding that, while reasoned judgments are important and a right, no right exists for the applicant’s case to be referred by a domestic judge to the Luxembourg Court, though it is vital that summary judgment not be arbitrary / manifestly unreasonable; that Estonian courts have made reasonable use of the preliminary reference procedure before the Luxembourg Court thus far; and that they should articulate well the reasoning for referral/non-referral for litigants. The author proposes that the Estonian Supreme Court explain, exceptionally in one refusal of leave to appeal (cf. the Netherlands), that the general requirements for granting leave to appeal cover also the situation of preliminary questions to the CJEU and C.I.L.F.I.T. arguments of the CJEU. Above all, neither the interplay between EU law and the European Convention on Human Rights nor the role of national courts finding their way in complex legal surroundings should be neglected.
23
Voβkuhle, Andreas. "Multilevel cooperation of the European Constitutional Courts: Der Europäische Verfassungsgerichtsverbund." European Constitutional Law Review 6, no. 2 (June 2010): 175–98. http://dx.doi.org/10.1017/s1574019610200020.
Full textAbstract:
Broad concept of constitutional jurisdiction – Triangle between Karlsruhe, Strasbourg and Luxembourg – European vocation of the German Constitutional Court and Basic Law – European Convention on Human Rights – Karlsruhe decisions can be reviewed in Strasbourg – Human rights-related constitutional court – European Court of Justice developed into constitutional court of the Union – Verbund between three courts – No simplistic hierarchy – Verbund techniques – Dialogue in Human Rights; Interplay in Integration – Federal Constitutional Court and European Court of Human Rights functionally comparable – Both Courts seek substantive coherence as Verbund technique – Federal Constitutional Court commits all German authorities to the Convention – Federal Constitutional Court and ECJ – Principle of openness to European Law – Sharing and assigning responsibilities in complex system – Solange, ultra vires and identity review – Responsibility for integration, due by Court and other German bodies – Federal Court contributes to common European Constitutional order – Europe-wide discursive struggle and ‘Lernverbund’
24
Young, Archibald. "Christopher St. German’s Doctor and Student: From Legal Debate to Religious Division." Moreana 37 (Number 143-, no. 3-4 (December 2000): 39–76. http://dx.doi.org/10.3366/more.2000.37.3-4.5.
Full textAbstract:
In the First Dialogue of Doctor and Student, Christopher St. German addressed an audience of lawyers and judges for whom he sought to clarify the relation between Chancery and courts of common law. By the time he turned to the Second Dialogue, St. German was directing his attention to a more general public, and shifting his interest to the role of conscience in chancery law. Comparing the use of that principle in secular and ecclesiastical courts, he concluded that the former offered better legal remedies, but acknowledged that the jurisdiction of secular courts could not be enlarged effectively unless English law was changed. St. German contributed to Henry VIII’s anti-clerical campaign in a third dialogue, titled New Additions, which outlined new parliamentary measures aimed at limiting the jurisdiction of ecclesiastical courts.
25
HOVELL, DEVIKA. "A Dialogue Model: The Role of the Domestic Judge in Security Council Decision-Making." Leiden Journal of International Law 26, no. 3 (July 31, 2013): 579–97. http://dx.doi.org/10.1017/s0922156513000253.
Full textAbstract:
AbstractThis article proposes a different theoretical account of the role of domestic courts when engaged in judicial review of decision-making by international institutions. Many domestic courts in democratic societies operate in accordance with a ‘public-law model’ when adjudicating questions related to international decision-making, underwritten by respect for doctrines such as the rule of law and separation of powers. Drawing on a case study of domestic-court decisions in the Security Council sanctions context, this article seeks to demonstrate how the public law model's focus on concepts of ‘bindingness’ and hierarchy between judicial and political organs can lead to distorted outcomes when applied to decision-making by international institutions. As an alternative, the author proposes a different theoretical account of the judicial role, described as the ‘dialogue model’, of courts when engaging in the review of Security Council decision-making. The idea is that domestic courts should confine themselves to tools of ‘interpretation’ and ‘declaration’ in their approach to international decision-making, so as to position their judgments in a more theoretically supportable way in the broader legal context.
26
Forlati, Serena. "On ‘Court Generated State Practice’: The Interpretation of Treaties as Dialogue between International Courts and States." Austrian Review of International and European Law Online 20, no. 1 (May 7, 2018): 99–110. http://dx.doi.org/10.1163/15736512-00000007.
Full text
27
Trzpis-Szysz, Katarzyna. "Judicial Dialogue after the Genocide in Rwanda." International Community Law Review 21, no. 5 (November 12, 2019): 421–31. http://dx.doi.org/10.1163/18719732-12341411.
Full textAbstract:
Abstract In this study, the author describes the dialogue between the International Criminal Tribunal for Rwanda and the Gacaca courts after one of the bloodiest conflicts in the contemporary history of Africa – the 1994 genocide in Rwanda. The purpose of this work is to show how international and internal cooperation can influence the solving of armed conflicts, especially in the process seeking justice for the civilian casualties. By recalling the historical context, the author emphasizes the importance of the juridical basics, which are established immediately after the armed conflicts. Furthermore, this study also shows how Gacaca courts were a new dimension of judicial proceedings in the Rwandan legal system. It analyzes how these courts were able to contribute to successfully prosecuting war criminals. This subject is not widely discussed in the literature and the size limitations necessarily imposed on an article of this nature do not allow for a detailed exploration of the subject here so it is vital that this subject is studied further.
28
Peers, Steve. "Bosphorus – European Court of Human Rights." European Constitutional Law Review 2, no. 3 (October 2006): 443–55. http://dx.doi.org/10.1017/s1574019606004433.
Full textAbstract:
The position of human rights within the European Union legal order has been an issue since the early years of the original European Economic Community. For many years, the development of human rights as general principles of Community law was characterized by dialogue and debate between the Communities' Court of Justice on the one hand, and certain national constitutional courts on the other, as regards the protection of human rights recognized in national constitutions by the Community legal order. But in recent years, there has been a parallel dialogue between the Court of Justice and the European Court of Human Rights, as regards the Community legal order's protection of the rights guaranteed by the European Convention of Human Rights (ECHR).
29
Guastaferro, Barbara. "The unexpectedly talkative ‘dumb son’: the Italian Constitutional Court’s dialogue with the European Court of Justice in protecting temporary workers’ rights in the public education sector." European Constitutional Law Review 13, no. 3 (September 2017): 493–524. http://dx.doi.org/10.1017/s1574019617000220.
Full textAbstract:
Judicial cooperation – Italian Constitutional Court – National Constitutional Courts’ attitude towards preliminary reference to the European Court of Justice – First and second preliminary reference of the Italian Constitutional Court inindirectproceedings – Constitutional review of national legislation inconsistent with EU law – Relationship between EU law and constitutional concerns – Added value of Constitutional Courts in protecting constitutional identity – Multilevel protection of fundamental rights – EU Framework agreement on fixed-term work and European Court of Justice case law – Italian legislation on fixed-term work – Italian legislation on recruitment in State schools – Abuse arising from the use of successive fixed-term employment contracts – Judicial defence of workers’ rights – Cooperation between judges and legislators – Balancing between social rights and budgetary constraints –Mascolocase –Tariccocase
30
Almeida, Paula Wojcikiewicz. "The Challenges of the Judicial Dialogue in Mercosur." Law and Practice of International Courts and Tribunals 14, no. 3 (December 9, 2015): 392–406. http://dx.doi.org/10.1163/15718034-12341306.
Full textAbstract:
Since its inception, Mercosur has opted for a non-coercive and diplomatic dispute settlement system. State Parties still oscillate between institutionalization based on the European model and the maintenance of an arbitral system for the settlement of disputes. This choice is linked to the possibility and limits of judicial dialogue in Mercosur. In this context, this article aims to analyse the existing horizontal ‘dialogue’ between Mercosur judges and international judges, on the one hand, and the vertical dialogue between Mercosur judges and national judges, on the other hand. In terms of the horizontal ‘dialogue’, the objective is to evaluate the use of precedents and references to other international, regional, and sub-regional Tribunals. As for the supposed vertical ‘dialogue’ between Mercosur judges and national judges, this article analyses the interaction with national courts through the cooperation mechanism established by advisory opinions (which is similar to preliminary rulings under the auspices of the eu), as well as via judicial ‘dialogue’ with representatives of national supreme courts of Mercosur State Parties. The importance of the advisory opinion mechanism is well known, as is the preliminary ruling mechanism in the European Union. Similar to the eu, several important principles of Mercosur law have been laid down by advisory opinions.
31
Tremblay, Luc B. "The legitimacy of judicial review: The limits of dialogue between courts and legislatures." International Journal of Constitutional Law 3, no. 4 (October 1, 2005): 617–48. http://dx.doi.org/10.1093/icon/moi042.
Full text
32
Ferrarese, Maria Rosaria. "Transjudicial dialogue and constitutionalism: a risk or an opportunity for democracy?" SOCIOLOGIA DEL DIRITTO, no. 2 (December 2009): 113–38. http://dx.doi.org/10.3280/sd2009-002008.
Full textAbstract:
- After briefly explaining how constitutional dialogue works and has mostly been elaborated, together with how it is encouraged and made possible by some of the institutional characteristics of the judiciary, this paper addresses a specific issue: the link between the position adopted by the courts with regard to this practice and the different kinds of legitimisation which they refer to, whether democracy or constitutionalism. Legitimacy may be based more on democracy, with the idea that national sovereignty is its almost exclusive source, or on the idea that, in matters of rights, universal standards may or must pass through different democracies. As usual parlance is of course about "constitutional democracies", it reconciles the potential opposition between the two aspects. However, globalisation, with the challenges it sets towards national sovereignty, is strengthening this opposition, pushing it toward the one or the other aspect. Courts and especially constitutional courts are thus becoming the places where decisions are made about the ambivalence between the risk of de-nationalising national constitutional law and the opportunity to take part in creating new cosmopolitan forms of law and universalising a constitutional protection of fundamental and human rights. Two possible answers to this ambivalence are highlighted by focusing particularly on the example of two national constitutional courts, that of South Africa and that of the United States, starting from their different attitudes towards involvement in the constitutional dia- logue. Their different, even opposite, ways of approaching transnational dialogue lead to paradoxical results.
33
JHR and WTE. "Les Juges Constituants." European Constitutional Law Review 6, no. 2 (June 2010): 171–74. http://dx.doi.org/10.1017/s1574019610200019.
Full textAbstract:
Constituent power of the courts, in dialogue, accommodation or even collaboration, has become undeniable. It raises at least two points for scholarship to contemplate. First, what is the foundation of this power in terms of classical constitutional theory? Second, instead of or apart from the courts and their interactions: what is the relationship, in this constituent activity, between the courts and the political institutions, including the people?
34
Crawford, Christopher John. "Dialogue and declarations of incompatibility under section 4 of the Human Rights Act 1998." Denning Law Journal 25, no. 1 (September 26, 2013): 43–89. http://dx.doi.org/10.5750/dlj.v25i1.748.
Full textAbstract:
It has been argued that the Human Rights Act 1998 (‘HRA’) establishes a ‘dialogue’ between the courts, parliament and the executive. This ‘dialogue’ is supposed to be an exchange of ideas about rights pursuant to which policy goals are revised, but not blocked, following judicial decisions and takes place predominantly when courts issue declarations of incompatibility under s 4 of the HRA. There have been 18 cases in which declarations have become final. This article considers those 18 cases and their legislative aftermaths. It reveals, firstly, that parliament has some ability to deal with rights issues without the courts’ prompting, secondly, that although certain declarations may have led to constructive modification of public policy, other declarations may have led to less effective policy and, thirdly, that parliament has no real freedom to disagree with the conclusions of the courts on questions of rights when a declaration has been made.
35
GRÜNWALDOVÁ, VLADIMÍRA PEJCHALOVÁ. "General and Particular Approaches to Implementation of theEuropean Convention on Human Rights." Canadian Yearbook of international Law/Annuaire canadien de droit international 55 (August 30, 2018): 248–92. http://dx.doi.org/10.1017/cyl.2018.10.
Full textAbstract:
AbstractThis article deals with the implementation, at the national level, of European human rights protection standards as enshrined in theEuropean Convention on Human Rights(ECHR) and interpreted by the European Court of Human Rights (ECtHR). It discusses the principles of interpretation of theECHRby the ECtHR, the interaction and mutual dialogue between the ECtHR and national courts, and the approach of the latter to interpretation and application of the case law of the ECtHR. Using the concrete examples of France and the Czech Republic as case studies, it is shown to what extent and how European constitutional courts take into account and apply the letter of the Convention and its interpretation by the ECtHR.
36
Vetzo, Max. "The Past, Present and Future of the Ne Bis In Idem Dialogue between the Court of Justice of the European Union and the European Court of Human Rights: The Cases of Menci, Garlsson and Di Puma." Review of European Administrative Law 11, no. 2 (December 31, 2018): 55–84. http://dx.doi.org/10.7590/187479818x15481611819868.
Full textAbstract:
The cases of Menci (C-524/15), Garlsson (C-537/16) and Di Puma (C-596/16 and C-597/16) deal with the duplication of criminal and punitive administrative proceedings for the same conduct in the area of VAT and market abuse. The Court of Justice of the European Union (CJEU) held that this duplication of proceedings constitutes a limitation of the ne bis in idem principle of Article 50 of the Charter of Fundamental Rights (Charter). This infringement is only justified if the requirements of the limitation clause of Article 52(1) of the Charter are met. The judgments were highly anticipated as they constitute the response of the CJEU to the judgment in A and B v Norway delivered by the European Court of Human Rights (ECtHR), in which the ECtHR lowered the level of protection afforded by the ne bis in idem principle of Article 4 of Protocol No. 7 to the European Convention of Human Rights (A4P7 ECHR). While there are differences between the approaches taken by both courts, it appears that the reasoning of the CJEU in the judgments largely mirrors that of the ECtHR in A and B v Norway. This article frames the judgments in terms of the dialogue between the CJEU and ECtHR on the ne bis in idem principle. It does so chronologically, by focusing on the past, present and future of the ne bis in idem dialogue between both European courts.
37
Heckman, Gerald P. "Laverne A. Jacobs & Justice Anne L. Mactavish, eds., Dialogue Between Court And Tribunals – Essays In Administrative Law And Justice (2001- 2007)." Windsor Yearbook of Access to Justice 27, no. 2 (October 1, 2009): 485. http://dx.doi.org/10.22329/wyaj.v27i2.4558.
Full textAbstract:
“Dialogue between Courts and Tribunals,” a title that could describe the interplay between judges and decision-makers in the context of the judicial review of administrative decisions, in fact refers to a series of annual roundtables organized by the Canadian Institute for the Administration of Justice [CIAJ].
38
Geiringer, Claudia. "The Constitutional Role of the Courts under the NZ Bill of Rights: Three Narratives from Attorney-General v Taylor." Victoria University of Wellington Law Review 48, no. 4 (December 1, 2017): 547. http://dx.doi.org/10.26686/vuwlr.v48i4.4727.
Full textAbstract:
In Attorney-General v Taylor, New Zealand's Court of Appeal upheld the High Court's recognition, and exercise, of an implied jurisdiction to make (non-binding) declarations of legislative inconsistency with the New Zealand Bill of Rights Act 1990 (the NZ Bill of Rights). Recognition of this novel jurisdiction says something important about the evolution of judicial-legislative relations under the NZ Bill of Rights. The question is: what exactly? This article suggests that a close analysis of the Court of Appeal's decision in Taylor in fact discloses three interwoven narratives that speak to the constitutional role of the courts in enforcing the NZ Bill of Rights: the NZ Bill of Rights as "legal benchmark"; the NZ Bill of Rights as "facilitator of inter-branch dialogue"; and the "common law-fuelled bill of rights". The article unpicks these narratives, explores the relationship between them and discusses the extent to which they succeed in accommodating or justifying the new declaratory remedy.
39
Geringer, Claudia. "On a Road to Nowhere: Implied Declarations of Inconsistency and the New Zealand Bill of Rights Act." Victoria University of Wellington Law Review 40, no. 3 (December 7, 2009): 613. http://dx.doi.org/10.26686/vuwlr.v40i3.5258.
Full textAbstract:
This article explores recent case law touching on the suggestion that the New Zealand courts have an implied power to formally declare that legislation is inconsistent with the rights and freedoms contained in the New Zealand Bill of Rights Act 1990. The article concludes from this case law that the prospects for the development of a formal declaratory jurisdiction of this kind in New Zealand are, if anything, receding. Further, although the Supreme Court's decision in R v Hansen [2007] 3 NZLR 1 affirms the power of the New Zealand courts to informally "indicate" the existence of such legislative inconsistencies, early indications suggest that it is unlikely that this power will be exercised on a routine basis. In the absence of legislative reform, any "dialogue" over human rights between the New Zealand courts and the political branches of government is likely to continue to be far more sporadic and sotto voce than in those countries that have legislated for an express declaration of inconsistency power.
40
Žuber, Bruna, and Špela Lovšin. "Judicial dialogue in the light of Protocol no. 16 to the European convention on human rights." Zbornik Pravnog fakulteta Sveučilišta u Rijeci 40, no. 2 (2019): 899–925. http://dx.doi.org/10.30925/zpfsr.40.2.10.
Full textAbstract:
The authors discuss legal nature of the Protocol No. 16 to the European Convention on Human Rights (ECHR) which entered into force on 1 August 2018. With the aim of improving the judicial dialogue between European Court of Human Rights (ECtHR) and highest national courts, the Protocol No. 16 introduced the advisory opinion procedure at the ECtHR level. A detailed analysis of the impact of advisory opinion procedure on the judicial dialogue is included and is further supported by the reviews of cases at the ECtHR against Slovenia, Belgium and Italy, which illustrate how a possibility to request an advisory opinion could have prevented finding of a human right’s violation on the Strasbourg level and raised the effectiveness of human rights standards. The authors believe the Protocol No. 16 has brought a lot of potential for improvement of the judicial dialogue, which could lead to better understanding of ECHR standards, as interpreted by the ECtHR, and therefore prevent human rights violations already on a national level.
41
Harrington, Joanna. "The Democratic Challenge of Incorporation: International Human Rights Treaties and National Constitutions." Victoria University of Wellington Law Review 38, no. 2 (August 1, 2007): 217. http://dx.doi.org/10.26686/vuwlr.v38i2.5521.
Full textAbstract:
According to Canadian Supreme Court Justice Claire L’HeureuxDubé, the global judicial community is engaged in a process of dialogue, especially in cases involving the determination of constitutionally protected human rights. However, as this author notes, if there is a process of dialogue taking place, it does not always include the international treaty monitoring bodies supported by the United Nations, even when there is a treaty link between the international body and the domestic state. The author considers the approach taken by courts in South Africa, the United Kingdom and Ireland with respect to the judicial consideration of international human rights decisions, linking the prospects for dialogue to the express mandates to consider such case law within their constitutions, while contrasting the experience with that of Canada and New Zealand, where no such express imperative exists. The author concludes by suggesting that such a constitutionallydeterminedapproach may well be the most democratic means of reconciling a state’s international commitments with its domestic law.
42
Repousis, Odysseas G. "State Succession and Devolution Agreements Revisited: A Note on Sanum v. Laos." Max Planck Yearbook of United Nations Law Online 21, no. 1 (October 10, 2018): 353–77. http://dx.doi.org/10.1163/13894633_021001012.
Full textAbstract:
In a recent judgment, the Singapore Court of Appeal quashed a prior judgment of the Singapore High Court, which had decided to set aside an arbitration award on the basis that the China–Laos bilateral investment treaty (bit) does not apply to Macao. The judgment of the Court of Appeal is significant inasmuch as it involves a thorough examination of the international law principles governing the law of State succession in respect of part of territory, the relative effect of treaties in the context of devolution agreements, and the relationship between the critical date rule (or intertemporal principle) and the interpretive norm of subsequent agreement or practice. Above all, the dialogue between the Singaporean courts and the arbitral tribunal (whose award was sought to be set aside) raise a number of interesting issues in respect of the territorial application of investment treaties in general and Chinese investment treaties in particular. It also bears noting that this dialogue and its impact on future cases has to be filtered through subsequent developments, most notably a statement issued by China’s Ministry of Foreign Affairs to the effect that the Court of Appeal judgment was incorrect.
43
Lambert, Hélène. "TRANSNATIONAL JUDICIAL DIALOGUE, HARMONIZATION AND THE COMMON EUROPEAN ASYLUM SYSTEM." International and Comparative Law Quarterly 58, no. 3 (July 2009): 519–43. http://dx.doi.org/10.1017/s0020589309001249.
Full textAbstract:
AbstractIncreased policy harmonization on refugee matters in the European Union (EU), namely the creation of a Common European Asylum System (CEAS), has created the imperative for a transnational judicial comparative dialogue between national courts. This article is based on a structured, focused comparison approach to examining a key element of a transnational European legal dialogue, namely, the use of foreign law by national judges when making their own decisions on asylum. It does so by examining two countries, France and Britain, as representative of the difference in legal tradition and culture within the EU in terms of the civil–common law divide. Both case studies are structured around a common set of empirical and jurisprudential research questions. The empirical findings reveal a surprising lack of transnational use of national jurisprudence on asylum between judges. Nonetheless, a slight but noticeable increase in the use of transnational asylum jurisprudence in the British and French courts must be noted. Two broad accounts—one rational, the other cultural—are applied in each of the case studies to explain this empirical finding. This article concludes on the broader implications of these findings for the establishment of a CEAS by 2012.
44
Pollicino, Oreste. "From Partial to Full Dialogue with Luxembourg: The Last Cooperative Step of the Italian Constitutional Court." European Constitutional Law Review 10, no. 1 (April 15, 2014): 143–53. http://dx.doi.org/10.1017/s1574019614001084.
Full textAbstract:
The year 2013 will be remembered as a very good year for the evolution of the judicial conversation between the Court of Justice and the constitutional courts of the member states. This is true at least with regard to the particular form of judicial cooperation that may be considered the institutional channel of dialogue between the Luxembourg Court and national judges: the preliminary ruling mechanism. In 2013 the French Conseil Constitutionnel for the first time in its history sent a request for a preliminary ruling to the ECJ and the latter answered the first preliminary ruling sought in 2011 by the Spanish Tribunal Constitucional. Moreover, the Italian Corte Costituzionale decided for the first time to raise a preliminary reference to the Luxembourg judges in the context of incidenter proceedings. This represents a second step, following an initial one taken in 2008 in so called direct proceedings. The new judicial path of the Italian Constitutional Court (ICC) is in line with the new season of cooperative constitutionalism in Europe.
45
Glazebrook, Susan. "Academics and the Supreme Court." Victoria University of Wellington Law Review 48, no. 2 (October 2, 2017): 237. http://dx.doi.org/10.26686/vuwlr.v48i2.4742.
Full textAbstract:
Richard Posner laments what he sees as an unfortunate gulf between academia and the courts. To assess whether there is such a gulf in New Zealand, this address analyses the role of academics and judges. It concludes that academics provide valuable insights and assistance to the courts but that their role is much wider, being at its broadest the advancement of knowledge. By contrast, the primary role of judges at all levels is to decide the case in front of them according to law. This means that academics and the judiciary are engaged in different pursuits and, while the roles may converge at times, ultimately the differences must be respected. But there can and should be constructive dialogue. In this regard, the address discusses three areas where the New Zealand Supreme Court has received criticism from academics.
46
Kahraman, Filiz, Nikhil Kalyanpur, and Abraham L. Newman. "Domestic courts, transnational law, and international order." European Journal of International Relations 26, no. 1_suppl (September 2020): 184–208. http://dx.doi.org/10.1177/1354066120938843.
Full textAbstract:
This article revisits the relationship between law and international order. Building on legal research concerned with transnational law, we argue that domestic courts are endogenous sites of international political change. National courts are constitutive of international order by generating new rules, adjudicating transnational disputes, and bounding state sovereignty. We illustrate the ways in which national courts create new political opportunities by updating three core international relations theory debates. Recognizing the role of domestic courts as global adjudicators enhances our understanding of regime complexity and international forum shopping. By re-interpreting aspects of conventional international law, and engaging in cross-border dialogue, domestic courts challenge our understanding of international diffusion and judicialization. By redefining the boundaries of state authority and sovereignty, national courts create potential for conflict and cooperation. A transnational law perspective illustrates the porous nature between domestic and international spheres, highlighting how domestic courts have become adjudicators for state and non-state actors that operate across mainstream levels of analysis. Our approach calls on scholars to move beyond analyzing national legal systems as mechanisms of compliance to instead consider domestic courts as co-creators of international order.
47
ARMSTRONG, JACKSON W., and ANDREW MACKILLOP. "Introduction: communities, courts and Scottish towns." Urban History 44, no. 3 (October 17, 2016): 358–64. http://dx.doi.org/10.1017/s0963926816000754.
Full textAbstract:
ABSTRACTThis short essay sets the context for the special section on communities, courts and Scottish towns. Scottish burgh records generally, and Aberdeen's UNESCO recognized collection in particular, are considered in light of their legal character. The changing features of pre-modern political society between the fifteenth century and the early nineteenth century are introduced as a shared problem for investigation, and an ancien régime framework is examined as a comparative tool in this field. A vital concern of these articles is with the construction and sometimes contested use of vocabularies of law and authority, privileges and liberties, and ideas of urban ‘community’. Courts at the municipal level, and in the world beyond the burgh, are appreciated as legal and governmental fora. The ambition of this special section is to prompt European comparisons, and encourage greater dialogue with and consideration of Scottish urban records in future research.
48
Acosta, Diego. "Court of Justice of the European Union (Ninth Chamber), WT v Subdelegación del Gobierno en Guadalajara." European Journal of Migration and Law 22, no. 3 (October 7, 2020): 457–62. http://dx.doi.org/10.1163/15718166-12340083.
Full textAbstract:
Abstract This case report provides an account of the issues in the preliminary ruling of the Court of Justice of the European Union (CJEU) in the WT case. The case centres on the elements that need to be considered under Directive 2003/109 before expelling a third-country national, holding a long-term residence permit, who has committed a criminal offence. This case report discusses the interpretation of Article 12 of Directive 2003/109, in particular the concept of threat to public policy, describes the incorrect previous reading by the Spanish Supreme Court of that provision, the possible case for a state liability claim against Spain as a result of that, and the importance of the dialogue between lower-level domestic courts and the Court of Justice on migration matters.
49
Vermette, D’Arcy. "Dizzying Dialogue: Canadian Courts and the Continuing Justification of the Dispossession Of Aboriginal People." Windsor Yearbook of Access to Justice 29 (February 1, 2011): 55. http://dx.doi.org/10.22329/wyaj.v29i0.4480.
Full textAbstract:
Since Aboriginal rights have found protection within Canada’s Constitution, a new relationship has emerged between Canada’s Aboriginal Peoples and the Crown. This relationship is characterized by the need for “reconciliation.” In its growing jurisprudence, the Supreme Court of Canada applies reconciliation doctrine to several important Aboriginal claims. Each application, however, brings with it a restriction on Aboriginal rights. This paper argues that the Court’s conception of reconciliation is designed to facilitate the integration of Aboriginal peoples into larger society rather than to protect their collective interests. To demonstrate this argument, this paper examines the Supreme Court’s discussion of the doctrine of reconciliation from Sparrow (1990) to Little Salmon (2010).Depuis que les droits des autochtones sont protégés par la constitution canadienne, une nouvelle relation, ayant comme caractéristique le besoin de « réconciliation », a vu le jour entre les peuples autochtones du Canada et la Couronne. La Cour suprême du Canada a appliqué la doctrine de la réconciliation dans la série d’arrêts où elle s’est penchée sur plusieurs importantes revendications autochtones. Dans chaque cas, l’application de la doctrine de la réconciliation a cependant abouti à une restriction des droits des autochtones. Dans cet article, l’auteur soutient que, dans l’esprit de la Cour, la réconciliation vise à faciliter l’intégration des peuples autochtones dans la société en général plutôt qu’à protéger leurs intérêts collectifs. Pour étayer cette opinion, il examine l’analyse qu’a faite la Cour suprême de la doctrine de réconciliation de l’arrêt Sparrow (1990) à l’arrêt Little Salmon (2010).
50
Lohse, Eva Julia. "The German Constitutional Court and Preliminary References—Still a Match not Made in Heaven?" German Law Journal 16, no. 6 (December 2015): 1491–508. http://dx.doi.org/10.1017/s2071832200021234.
Full textAbstract:
So far, the German Constitutional Court (Bundesverfassungsgericht, henceforth:BVerfG) has only made a single preliminary reference to the (now) Court of Justice of the European Union (CJEU), despite frequent rulings on matters connected with European Union (EU) Law. Its apparent reluctance seemed odd considering the atmosphere of dialogue and cooperation which prevails between the non-constitutional courts and the EU courts. This situation might, however, have changed with the preliminary reference from January 2014, proving predictions on the perceived “most powerful constitutional court” and its relationship to the EU partly wrong. The legal effects of its preliminary reference on the interpretation of Articles 119, 123, 127 ff. of the Treaty on the Functioning of the European Union (TFEU) and the validity of Outright Monetary Transactions (OMT) by the European Central Bank (ECB) under EU Law are as yet unclear; although the Opinion of the Advocate General Cruz Villalón was delivered in the beginning of 2015, which did not confirm the doubts expressed by theBVerfGabout the conformity of the OMT programme with EU law. Nonetheless, the interpretative scheme and the normative questions as to the reluctance of theBVerfGremain the same after this single referral and offer explanations as to why theBVerfGhad for nearly sixty years not referred a question to the former European Court of Justice (ECJ).