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Journal articles on the topic 'Jurisdictional disputes'
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1
Zhou, Xin, and Junyu Lan. "Investigation Report on Jurisdiction of Online Shopping Contract Disputes." Asian Journal of Social Science Studies 7, no. 4 (April 14, 2022): 134. http://dx.doi.org/10.20849/ajsss.v7i4.1108.
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With the continuous expansion of the market scale of online shopping, the contradiction between merchants, platforms and consumers has gradually become prominent, which is manifested in the increasing number of online shopping disputes in the courts. The determination of jurisdiction is the starting link before the dispute enters the litigation, which involves the orderly conduct of civil litigation and is related to the interests of the parties. This paper attempts to analyze the causes of the jurisdictional issues of online shopping contract disputes through the investigation of the jurisdictional decisions, explore the shortcomings of existing jurisdictional provisions in online shopping contract disputes, improve the jurisdictional system of online shopping contract disputes, and explore possible legal optimization paths, so as to provide theoretical support for legislation and justice.
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Nguyen, Lan Ngoc. "Jurisdiction and Applicable Law in the Settlement of Marine Environmental Disputes under UNCLOS." Korean Journal of International and Comparative Law 9, no. 2 (December 7, 2021): 337–53. http://dx.doi.org/10.1163/22134484-12340161.
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Abstract Part XII of the United Nations Convention on the Law of the Sea (UNCLOS) on the protection and preservation of the marine environment contains provisions that are worded in a general manner. As “the problems of ocean space are closely interrelated and need to be considered as a whole”, these provisions need to be interpreted in harmony with the wider corpus of international law. However, when marine environmental disputes are brought before the UNCLOS dispute settlement bodies, their jurisdiction is limited to disputes arising under UNCLOS. The tribunals, therefore, have to navigate between deciding disputes in a hollistic manner and remaining within their jurisdictional limits. This article discusses the techniques used by UNCLOS tribunals to resort to other sources of international law when settling marine environmental disputes. It will then assess whether, in doing so, the tribunals have remained within their jurisdictional parameters and the wider implications of this practice.
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Yip, Man. "THE RESOLUTION OF DISPUTES BEFORE THE SINGAPORE INTERNATIONAL COMMERCIAL COURT." International and Comparative Law Quarterly 65, no. 2 (March 17, 2016): 439–73. http://dx.doi.org/10.1017/s0020589316000051.
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AbstractThe jurisdictional framework of the Singapore courts has become more nuanced with the establishment of the Singapore International Commercial Court (SICC) on 5 January 2015 and the signing of the Hague Convention on the Choice of Court Agreements 2005 (Hague Convention) on 25 March 2015. Although the Hague Convention has yet to be incorporated in domestic law, it is expected this will happen in the near future. The SICC project, on the other hand, is part of Singapore's strategy to promote the jurisdiction as an international dispute resolution hub. In essence, the SICC is a domestic specialist court established to deal with international commercial litigation. Adapted from the arbitral model but underpinned by judicial control, central to the SICC framework are party autonomy and flexible procedural rules. The Hague Convention complements the SICC project by increasing the number of jurisdictions in which Singapore judgments will be recognized and enforced. These 2015 developments—key to establishing Singapore as the regional hub for dispute resolution—requires careful working out and an evaluation is needed of the jurisdictional regime that applies to the SICC and the internal allocation of jurisdiction as between the SICC and the Singapore High Court sans the SICC, as well as the impact of the Hague Convention. This article focuses on explaining the in personam jurisdictional rules of the Singapore High Court that now includes the SICC division. Its chief objective is to offer the international community an overview of the working framework of Singapore's version of an ‘international’ commercial court.
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PROULX, VINCENT-JOËL. "The World Court's Jurisdictional Formalism and its Lost Market Share: The Marshall Islands Decisions and the Quest for a Suitable Dispute Settlement Forum for Multilateral Disputes." Leiden Journal of International Law 30, no. 4 (September 4, 2017): 925–46. http://dx.doi.org/10.1017/s0922156517000401.
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AbstractOn 5 October 2016, the International Court of Justice (ICJ, the Court) rendered three judgments declining to take jurisdiction in the Marshall Islands cases, in which that state alleged that India, Pakistan, and the United Kingdom violated their nuclear disarmament obligations under the Treaty on the Non-Proliferation of Nuclear Weapons and customary international law. In declining to take jurisdiction, the Court further confirmed its recent shift to jurisdictional formalism, initiated in Georgia v. Russia and confirmed in both Belgium v. Senegal and the Alleged Violations (Nicaragua v. Colombia) judgment. What is more, the Court heightened the burden of proving the existence of a dispute by incorporating an ‘objective awareness’ requirement in its analysis. The present contribution critically situates the Court's judgments within the context of the law of state responsibility and global security, with particular emphasis on the broader implications going forward. It first explores the principal features of the Court's formalistic shift on jurisdictional matters in the cases, setting the stage for the subsequent discussion. The article then turns to the broader implications of these decisions for state responsibility, taking into consideration that the ‘disputes’ submitted to the Court are not strictly bilateral in nature. My ambition is also to highlight the nexus between jurisdictional issues, state responsibility law, and broader questions of access to justice in multilateral disputes. By way of conclusion, the article highlights the importance of identifying creative solutions in a post-Marshall Islands world, suggesting the UN General Assembly as a law-making facilitator and the UN Security Council as an alternate – albeit imperfect – dispute settlement forum to tackle multilateral disputes with global security implications.
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Hill-Cawthorne, Lawrence. "INTERNATIONAL LITIGATION AND THE DISAGGREGATION OF DISPUTES: UKRAINE/RUSSIA AS A CASE STUDY." International and Comparative Law Quarterly 68, no. 04 (October 2019): 779–815. http://dx.doi.org/10.1017/s0020589319000411.
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AbstractThis article explores the phenomenon of ‘disaggregation’ of disputes in international law, that is, the carving up of broader disputes into discrete legal claims based on different international legal rules and subject to the jurisdiction of different international tribunals. In particular, its focus is on certain under-explored consequences of this phenomenon for the jurisdiction of international tribunals, asking whether the relationship between the specific claims and the broader dispute might affect the jurisdiction of the tribunals. Employing the ongoing Ukraine/Russia dispute, which has yielded multiple claims before different international tribunals, the article offers an original analysis of these jurisdictional questions. It presents three approaches discernible from case law where tribunals face claims over which they appear to have jurisdiction that implicate a broader dispute over which they do not. The article ends with a consideration of possible explanations for why a tribunal might follow one approach over the others in any given case.
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Buga, Irina. "Territorial Sovereignty Issues in Maritime Disputes: A Jurisdictional Dilemma for Law of the Sea Tribunals." International Journal of Marine and Coastal Law 27, no. 1 (2012): 59–95. http://dx.doi.org/10.1163/157180812x615113.
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Abstract It is unclear whether Law of the Sea tribunals under the Law of the Sea Convention (LOSC, or the Convention) have jurisdiction to determine maritime boundary disputes involving concurrent land sovereignty issues. The text of the Convention and case law are silent in this respect. The only reference is in LOSC Article 298(1)(a)(i), which allows States to make declarations exempting maritime delimitations from compulsory dispute settlement, excluding concurrent territorial questions even from conciliation. However, it leaves unclear whether concurrent land sovereignty issues are also excluded in the absence of such declarations. There are indications that LOS tribunals may be able to decide ancillary land issues so long as these do not constitute the ‘very subject-matter’ of the dispute, or rely on an alternative jurisdictional basis. The question of competence over mixed disputes may be less extensive in effect than is often believed. States should not avoid initiating proceedings based on the view that LOS tribunals might not ultimately exercise jurisdiction.
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Agbonika, John Alewo Musa, and Josephine A. A. Agbonika San. "Appraisal of the Jurisdictional Issues Confronting Prosecutors of Tax Related Disputes and Constitutional Bottlenecks." American Journal of Law 5, no. 1 (January 2, 2023): 1–29. http://dx.doi.org/10.47672/ajl.1309.
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Purpose: This paper examines the jurisdictional issues confronting tax enforcements, prosecution and other related issues. Jurisdiction over taxes administered at both the federal and state levels is determined by the legal personality of the taxpayer and place of residence for individuals. The Federal High Court, State High Courts and Tax Appeal Tribunal are vested with jurisdiction to hear and determine tax disputes. The Tax Appeal Tribunal is vested with jurisdiction to hear disputes arising from the operations of the Federal Inland Revenue Service. Tax disputes can be commenced either by the taxpayer or by the relevant tax authority. In practice, administrative channels within the relevant tax authority are usually the first step for resolution of tax disputes. Unresolved disputes proceed to the Tax Appeal Tribunal or Federal High Court, or where the tax is a State tax, to the State high court. The doctrinal research was used in carrying out this research.
Methodology: Both secondary and primary sourced materials such as textbooks, journals, internets, case laws etc. were used.
Finding: Finding reveals that there have been jurisdictional controversies confronting the constitutionality of TAT decision as well as the regular courts causing serious bottleneck for tax prosecutors.
Recommendation: It is recommended that in order to ensure tax compliance, effective resolution of tax disputes and proper administration of tax system, the issue of jurisdiction must be clearly spelt out.
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Soon, Joel. "Jurisdictional Conflict Between the World Trade Organization and Regional Trade Agreements: Res Judicata Revisited." Journal of World Trade 56, Issue 6 (December 1, 2022): 899–914. http://dx.doi.org/10.54648/trad2022037.
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This article discusses the long-standing issue of jurisdictional conflict in World Trade Organisation (WTO) jurisprudence, which has, in the recent decades, been exacerbated by the proliferation of Regional Trade Agreements (RTAs). An examination of WTO jurisprudence reveals that jurisdictional conflict stems from the lack of choice of forum clauses in WTO-covered agreements, and the lack of a hierarchy of sources in international law. While there exists legal basis for the application of general principles of international law such as res judicata, a careful analysis demonstrates that there is conceptual difficulty applying the doctrine in the context of WTO disputes. To remedy this, the article argues that the WTO Dispute Settlement Understanding (DSU) could be amended to allow for the operation of res judicata. WTO, res judicata, jurisdiction conflict, regional trade agreements, general principles of law, Dispute Settlement Understanding
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Furner, Courtney, Nadine Lederer, and Claire Sergaki. "The WTO’s Exclusive and Compulsory Jurisdiction v.Dispute Resolution Mechanisms in Regional Trade Agreements: A Clash of Jurisdiction?" Global Trade and Customs Journal 15, Issue 1 (January 1, 2020): 24–30. http://dx.doi.org/10.54648/gtcj2020005.
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Recently, the number of regional trade agreements (RTAs) has flourished and at the same time, trade disputes are increasing. The dispute settlement mechanisms (DSMs) in those RTAs may be potentially at odds with the DSM of the World Trade Organization (WTO), the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU). The interaction between the DSMs of the WTO and in RTAs raise various concerns, including forum shopping and conflicts of jurisdiction. The key question is: which DSM should prevail? The relationship between the DSU and the default DSM in the North American Free Trade Agreement (NAFTA) provides an example of such an interaction and illustrates the potential fragmentation in case of overlapping jurisdiction. In the Mexico – Tax Measures on Soft Drinks and Other Beverages case, the WTO’s Appellate Body was reluctant to adopt a straightforward position on such overlaps. Thus, at least for now, there are many open questions, but no clear-cut answers. After providing an overview of the legal framework and discussing this important case, the authors propose solutions as to how to deal with jurisdictional overlaps in trade disputes. World Trade Organization (WTO), Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU), Mexico – Soft Drinks, regional trade agreements (RTA), North American Free Trade Agreement (NAFTA), dispute settlement mechanisms, jurisdiction, proliferation, multiplication, international courts and tribunals
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Guilhardi, Pedro. "Jurisdiction of National Courts for Interim Reliefs in Aid of Foreign Arbitral Proceedings: a Proposed Solution under the New York Convention." Revista Brasileira de Arbitragem 9, Issue 36 (December 1, 2012): 56–89. http://dx.doi.org/10.54648/rba2012063.
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ABSTRACT: The paper discusses the change of view in what concerns the jurisdiction of national courts to entertain requests of interim reliefs in aid of foreign arbitral proceedings. In the past, national courts would assert jurisdiction only after the relevant cause of action had been established to fall strictly within its jurisdictional scope. The simple fact that a case would relate, prima facie, to assets or evidence located, territorially, within the jurisdictional reach of a given court would not suffice to establish said court's jurisdiction over the request. In current practice, the seat of arbitration proceedings is often established in view of the perceived neutrality of the lieu. However, more often than not, the relevant parties, assets and evidence are located elsewhere. Against this background, national courts (following the lead of a 1979 precedent of the House of Lords, United Kingdom), have sought to avail themselves of a more lenient jurisdictional standard, to assert jurisdiction in exceptional circumstances. In several jurisdictions, new legislation has even been adopted in order to meet the current adjudicative needs of disputes relating to international commerce and trade, a change of approach that will be discussed by this paper. Moreover, this paper seeks to determine how desirable the developing paradigm actually is, so as to ultimately propose how its implementation could be carried out in different jurisdictions within the framework of the New York Convention, and without the need of necessarily amending legislation.
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Khan, Ali Nawaz, Naveed Ahmad, and Bakht Munir. "Jurisdictional Determinants Of Investor-State Dispute Settlement: A Contemporary Critique." Global Economics Review V, no. IV (December 30, 2020): 47–57. http://dx.doi.org/10.31703/ger.2020(v-iv).05.
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International Convention for the Settlement of Investment Disputes (ICSID) has incorporated a specialized jurisdiction under the auspicious of the World Bank Group. The convention has promulgated a standing offer for the investors of the contracting states to invoke ICSID jurisdiction on the fulfilment of some determinants. ICSID tribunals have amplified the application of these determinants to the extent to overshadow the legitimate rights of sovereign states. The magnification of standards of determinants of investor-state dispute settlement has caused unpredictability of ICSID jurisdiction. Uniform and predictable standards of determinant have the potential to strengthen and promote this mechanism of institutional settlement of investment disputes.
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Diakonova, Maria O., and Polina D. Pechegina. "Jurisdictional and Non-jurisdictional Forms of Patent Rights Protection: Russian and Foreign Experience." Russian Journal of Legal Studies (Moscow) 9, no. 2 (July 18, 2022): 57–64. http://dx.doi.org/10.17816/rjls108412.
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The features of patent disputes determine the variety of mechanisms for their consideration and resolution. A review of the Russian and foreign experiences (Germany, Norway, United States, France, Sweden, Japan) show the applicability of various forms of patent rights protection, including administrative and judicial.
Administrative bodies that protect patent rights generally include divisions of patent offices and other executive authorities.
In the judicial systems of the states under review, special judicial structures function in the nature of courts with general competence to consider civil cases, while specialized courts for the protection of intellectual property rights including patents have been created.
The authors conclude that in the modern period, the arbitration and mediation of patent disputes are becoming increasingly widespread, offering a number of advantages, including confidentiality of the case and the necessary level of specialization of arbitrators (mediators). At the same time, however, it is hindered by the lack of uniformity in resolving the issue of the arbitrability of patent disputes.
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Aronson, Ori. "Border Disputes: Religious Adjudication Along the Private/Public Divide." Law & Ethics of Human Rights 15, no. 2 (November 1, 2021): 287–312. http://dx.doi.org/10.1515/lehr-2021-2023.
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Abstract The article uses Israel’s volatile jurisdictional dynamics of the past two decades concerning access to religious community justice, as a telling case for examining the way legal pluralism is deployed along the public–private divide. The Israeli case exhibits a complex combination of an ostensibly liberal democratic regime, a commitment to a particularistic ethno-national political project, structural entanglements of state and religion against the backdrop of an unsettled constitutional order, and an historically diffuse mode of often-illiberal normative ordering within its diverse religious communities. All this provides a rich backdrop for various strategies by communal and institutional elites seeking to consolidate power, legitimacy, and authenticity in their often mutually-reliant jurisdictional projects. The article explores several salient episodes from Israel’s religious jurisdiction dynamics, focusing for purposes of analytical clarity on the case of Jewish orthodox legality. The analysis uncovers the main strategies stakeholders resort to, and shows how agency flows in different ways, with the choices of each player affecting the possibilities of the others. The institution at the arguable top of the system—the Supreme Court—is shown to be often devoid of effective means of elucidating, let along imposing, a coherent vision for a fragmented jurisdictional field. Conceptually, the judicial forum is revealed as the locus of an ongoing, uneasy engagement among normative imaginaries in a sometimes-competitive, sometimes-collaborative negotiation over coherence, tolerance, authority, and legitimacy.
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De Werra, Jacques. "The Expanding Significance of Arbitration for Patent Licensing Disputes: from Post-Termination Disputes* to Pre-Licensing FRAND Disputes." ASA Bulletin 32, Issue 4 (December 1, 2014): 692–706. http://dx.doi.org/10.54648/asab2014078.
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In its recent decision ATF 140 III 134, the Swiss Federal Supreme Court held that certain claims raised by patent licensors against their exlicensee after the termination of their patent license agreement were within the jurisdiction of the arbitral tribunal notwithstanding a contractual provision which seemed to limit the submission to arbitration of only pretermination disputes. This interesting decision confirms that courts can consider adequate to confer to arbitral tribunals the jurisdictional powers to decide on patent-related claims after the termination of the patent license agreement at issue, even in the presence of contractual limits to the jurisdiction of the arbitral tribunal. This note further discusses the opposite scenario in which certain disputes arising before the conclusion of a patent license agreement can be submitted to arbitration. This peculiar situation arises in connection with so-called standard essential patents (which are quite common in the information technology / telecommunication industries) which must be made available to willing licensees under fair, reasonable and non-discriminatory terms and conditions (FRAND) and for which arbitration can be used in order to determine the FRAND-compliant terms and conditions of the patent license agreement (specifically the royalties to be paid by the licensee for the use of the standard essential patents). This note analyses this scenario in the light of the recent commitments made by Samsung (in its high profile dispute with Apple) which were validated by the European Commission on April 29, 2014 and which contains very interesting arbitration-related features which deserve to be presented. In sum, this note illustrates the expanding significance of arbitration for patent licensing disputes with respect to both post-termination disputes (as decided in ATF 140 III 134) and pre-licensing disputes (as contemplated for FRAND disputes).
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Lanyi, P. A., and A. Steinbach. "Limiting Jurisdictional Fragmentation in International Trade Disputes." Journal of International Dispute Settlement 5, no. 2 (April 21, 2014): 372–405. http://dx.doi.org/10.1093/jnlids/idu005.
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Eichberger, Fabian Simon. "Give a Court an Inch and It Will Take a Yard? The Exercise of Jurisdiction over Incidental Issues." Zeitschrift für ausländisches öffentliches Recht und Völkerrecht / Heidelberg Journal of International Law 81, no. 1 (2021): 235–64. http://dx.doi.org/10.17104/0044-2348-2021-1-235.
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This article seeks to clarify how international courts and tribunals should decide whether to exercise jurisdiction over incidental issues. It considers such issues incidental, which would fall outside the subject-matter jurisdiction of an international court or tribunal if submitted separately, but which courts rule upon to resolve disputes falling within their jurisdiction. International courts and tribunals have employed diverse approaches to decide whether to exercise jurisdiction over incidental issues. This contribution will assess their decisions to distil what criteria are best suited to ensure the effectiveness of the underlying treaty while taking into account the fundamental importance of state consent for judicial dispute settlement. It concludes that the necessity to exercise jurisdiction over the incidental issue and the nature of the issue should be the guiding criteria for international courts and tribunals, while the character of the jurisdictional basis may serve as supplementary criterion.
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Leshchina, E. L. "Competition of Procedural Forms of Court Consideration of Public Service Disciplinary Disputes." Actual Problems of Russian Law 17, no. 1 (December 20, 2021): 49–59. http://dx.doi.org/10.17803/1994-1471.2022.134.1.049-059.
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The paper examines the features of the legal regulation of consideration of administrative disputes and public service disputes as one of their types by the courts of general jurisdiction. It is shown that, despite the public and managerial nature of state-official, disciplinary relations, public service disputes between civil servants and an authorized manager about the legality of disciplinary sanctions, as well as disputes between employees and their employers, are dealt with by the courts under the rules of the Code of Civil Procedure of the Russian Federation, since the legislation does not establish special jurisdictional rules for claims arising from public service disputes. The author substantiates the opinion that for administrative cases challenging (appealing) the decisions, acts (or omissions to act) of state authorities and other state bodies and their officials on the ground of their nature and content of legal relations underlying them, administrative proceedings constitute the preferred procedural form for their consideration. Currently, administrative proceedings do not have any legitimate possibility to consider a dispute complicated by civil claims. Based on the analysis of existing approaches to the choice of procedural forms of consideration of public service disputes, it is suggested that the court can consistently consider within one administrative case, first, the legality of an administrative act, and then the claims against the state body, which will require the revision of the concept of the Code of Administrative Court Procedure in the RF.
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Palanissamy, Ayyappan, and Kesava Moorthy. "Consumer Dispute Resolution in Cyberspace - Trends and Developments." International Conference on Advances in Business, Management and Law (ICABML) 2, no. 1 (March 2, 2019): 120–27. http://dx.doi.org/10.30585/icabml-cp.v2i1.253.
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Developments and advancements in the ICT environment has led to high increase in electronic commerce. Cyber contractual disputes also emerge rapidly and this challenge the traditional consumer protection systems in terms of redressal and remedies. To protect consumers rights and interests, ADR mechanisms can be used which can overcome the difficulties confronted in the traditional litigation process. Dispute resolution in internet contracts can take place online either entirely or partly. There are various mechanisms available to resolve disputes which can protect disputants’ interests and rights absolutely. As the cyber environment usage continues to expand, it is utmost important to design effective mechanisms for resolving online commercial disputes because traditional adjudicatory process can be time consuming, expensive and may raise jurisdictional problems. Though the current trends and practice in the field of online dispute resolution exists, it appears that there are various aspects relating to which are yet to be clarified. This article aims to present a national and international scientific literature review on the models of Dispute Resolution mechanisms, discusses the use of Alternative dispute resolution systems (including ODR), types of procedure and mechanisms adapted for dealing with commercial disputes in India. It also looks into the international frameworks available with redressal systems and its effectiveness in dealing with cross border disputes.
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Jin, Yan, and Chao Wang. "Chinese court rules for the first time that it has jurisdiction over SEP global licensing disputes." Journal of Intellectual Property Law & Practice 17, no. 2 (January 31, 2022): 81–82. http://dx.doi.org/10.1093/jiplp/jpab180.
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Abstract OPPO v Sharp Corporation: Jurisdictional Objection in Global Rate Setting of Standard Essential Patent ((2020) Zui Gao Fa Zhi Min Xia Zhong No. 517), 19 August 2021 The Intellectual Property Court of the Supreme People’s Court (SPC) of China ruled that Chinese courts have jurisdiction over global licensing terms disputes for standard essential patent (SEP) in the communications sector.
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Alqudah, Mutasim Ahmad. "Alleviating Jurisdictional Uncertainty: An Arbitration Clause or a Jurisdiction Clause?" Business Law Review 37, Issue 4 (August 1, 2016): 124–28. http://dx.doi.org/10.54648/bula2016025.
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Disputes arising from commercial contracts involving foreign elements can be subject to litigation in many forums. Jurisdictional uncertainty has a very negative impact on engagement in international commerce. This uncertainty can be mitigated by the incorporation of either an arbitration clause or a jurisdiction clause. This article undertakes a comparative analysis of arbitration and jurisdiction clauses to show that reliance on an arbitration clause will provide parties to an international contract of commerce with a higher level of certainty. As this article clarifies, courts’ discretionary power to refuse the enforcement of arbitration clauses is less than their discretionary power to refuse enforcement of jurisdiction clauses. Courts grant a favourable treatment to arbitration clauses when enforced, whereas jurisdiction clauses are not treated as preferentially as arbitration clauses. This article concludes that if jurisdiction clauses are going to be of an equal function to arbitration clauses in terms of reducing jurisdictional uncertainty, a unified international legal framework for the enforcement of jurisdiction clauses must be in operation.
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Tropin, Z. "PRACTICE OF INTERNATIONAL INVESTMENT ARBITRATIONS ON IMPLEMENTATION OF CERTAIN PROVISIONS OF THE ENERGY CHARTER TREATY." Actual Problems of International Relations, no. 136 (2018): 48–59. http://dx.doi.org/10.17721/apmv.2018.136.0.48-59.
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Practice of international arbitrations on implementation of investment provisions of Energy Charter Treaty («ECT») is considered in the article. Certain investment disputes which appeared on the earliest period of operation of this international agreement are considered. Respectively they are interesting when one would like to forecast application of ECT's provisions. Conclusions of arbitration tribunals in cases Ioannis Kardossopoulos (Greece) v. Georgia, Petrobart Ltd. (Gibraltar) v. Kirgizia, Plama Consortium Ltd. (Cyprus) v. Bulgaria and Nykomb Synergetics Technology Holding AB (Sweden) v. Republic of Latvia are analyzed in the article. Among other things author investigates such problematic issues of implementation of ECT investment provisions as: responsibility of state for the violations performed by state enterprises; interrelation of jurisdiction of national courts and international arbitration tribunals on settlement of international disputes under the ECT; provisional application of ECT and possibility to consider violation of investment provisions on the jurisdictional stage. An author shows that ECT investment arbitrations act on the general trend of investment dispute settlement. On the other hand and taking into account peculiarities and importance of ECT respective decisions may become significant for the general practice of investment dispute settlement.
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Nguyen, Lan Ngoc. "The Chagos Marine Protected Area Arbitration: Has the Scope of losc Compulsory Jurisdiction Been Clarified?" International Journal of Marine and Coastal Law 31, no. 1 (February 29, 2016): 120–43. http://dx.doi.org/10.1163/15718085-12341393.
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This article focuses on the jurisdictional issues that arose from the losc Annex vii Arbitral Award of the Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom). In this case, the arbitral tribunal for the first time answered the long-debated question of whether it has jurisdiction to hear a dispute concerning territorial sovereignty issues. This article argues that in the process of answering this question, the arbitral tribunal managed to identify the steps in order to determine the extent to which its jurisdiction extends to sovereignty disputes. However, the manner in which the tribunal, and the dissenting arbitrators, proceeded with each of these steps left much to be desired in terms of clarity and coherence. The Arbitral Award nonetheless managed to clarify the scope of Article 297 regarding the limitations to compulsory jurisdiction and in determining the threshold for the fulfilment of Article 283 on the obligation to exchange views.
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Shumylo, Mykhailo. "Legal conclusions of the supreme court in religious context cases: determination of jurisdiction." Yearly journal of scientific articles “Pravova derzhava”, no. 33 (September 2022): 434–45. http://dx.doi.org/10.33663/1563-3349-2022-33-434-445.
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The religion-related disputes are one of the most diffi cult, as they concern a rather delicate issue of a person’s exercise of freedom of conscience. This category of disputes was not very common in the national courts and the lack of judicial experience in resolving disputes with a religious component has led to contradictory case law. Given the above and taking into account the main task of the Supreme Court aimed at ensuring the unity and sustainability of the judicial practice, the analysis of the rulings of the Supreme Court gets signifi cant importance. It can be stated that these disputes are of inter-jurisdictional nature and can be considered by both civil and commercial, and administrative courts, depending on the subject of the claim. The Supreme Court also makes a clear distinction between the disputes with a legal element and the disputes that do not have a legal element and should be resolved out of courts. Disputes with a religious component do not belong to only one category of cases and for this reason they can be characterized as intercategorial. The point is that the subjective criterion cannot be applied to the study of these categories, as disputes with a religious component can arise in the areas of labor, protection of property rights, land, real estate, registration procedures and so on. Both sings prove the complexity and individuality of each dispute as well as diffi culty of resolving such disputes by the courts of all instances. The Article substantiates the proposal on the need for the National School of Judges of Ukraine to develop the special courses for judges that would improve and deepen knowledge in the context and issues of religion-related disputes. The author also emphasizes the value of the national experience in resolving such disputes, as it can be useful for the countries that have the similar religious situation or have almost reached it. Key words: religion-related disputes, disputes with a religious component, jurisdiction, labor disputes, housing disputes.
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Bozhuk, I. I., and I. V. Chekhovskaya. "Medical Arbitration (Arbitration Court) as an Alternative to Civil Courts in Medical Disputes." Bulletin of Kharkiv National University of Internal Affairs 93, no. 2 (July 2, 2021): 82–94. http://dx.doi.org/10.32631/v.2021.2.07.
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The purpose of the research is to study theoretical and legal basis for the creation, operation of medical arbitration, its legal sources; experience of foreign countries that use medical arbitration in resolving disputes in the field of medical relations, as well as the development of propositions for the development and operation of medical arbitration in Ukraine.
The authors of the article examine the meaning of the terms of "arbitration court" and "medical arbitration". Their differences are highlighted: a) medical arbitration is an integral part of the arbitration court, it is created and operates within the arbitration court; b) medical arbitration has its own specialization (focus on resolving disputes in the field of medical relations).
The authors’ definition of the term of "medical arbitration" is formulated.
Regulatory legal acts that constitute the legal basis for the existence of arbitration courts in Ukraine are analyzed. The peculiarities of arbitration proceedings as an extrajudicial jurisdictional form of protection of the rights of subjects of medical legal relations are singled out: the presence of clear legislative regulation of the activities of arbitration courts; formalized nature of dispute resolution activities; jurisdictional nature of the arbitration court; legislative exclusion from the jurisdiction of the arbitral tribunal of certain categories of disputes; the absence of a direct dependence of the consequences of the dispute on the willingness of the parties to cooperate, as the party to the arbitration agreement cannot unilaterally refuse to arbitrate the dispute.
The advantages of medical arbitration (arbitration court) as opposed to civil courts in medical disputes are determined. These include: simplified procedure and lack of evidence; lack of formal rules of conduct; free choice of mediator (arbitrator, mediator, consultant, etc.); confidentiality and secrecy in resolving the dispute; possibility of personal control of the course of the procedure; infinity in time; private (non-state) nature.
The current state of development of medical arbitration is analyzed, as well as the main problems of its application in Ukraine are highlighted: insufficient awareness of medical arbitration and its scope, advantages before court proceedings; lack of sufficient qualified and experienced specialists; lack of state support and encouragement to use this form of protection of citizens’ rights; public distrust of new instruments of protection of the rights; the need to amend the Law of Ukraine "On Arbitration Courts" in terms of limiting the jurisdiction of arbitration courts of disputes related to consumer protection, including medical services.
The advantages of medical arbitration (arbitration court) as opposed to civil courts in medical disputes are determined. International experience of applying medical arbitration at the decision of disputes in the field of medical legal relations is studied and suggestions concerning the development and functioning of medical arbitration in Ukraine are developed. It is offered to increase the volume of subordinate cases for arbitration proceedings, in particular to provide an opportunity to consider medical conflicts in this order; to work to increase the authority of arbitration and the level of competence of arbitrators; to improve state support in the establishment and promotion of arbitration courts and to create conditions for training specialists for the activities of arbitration courts, as well as to improve their skills by exchanging experience with foreign countries that have succeeded in the development of arbitration.
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YEE, SIENHO. "Forum Prorogatum Returns to the International Court of Justice." Leiden Journal of International Law 16, no. 4 (December 2003): 701–13. http://dx.doi.org/10.1017/s0922156503001390.
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The ICJ interpreted Article 36(1) of its Statute – more specifically, the phrase ‘all cases which the parties refer to it’ – as permitting it to adopt the doctrine of forum prorogatum as a jurisdictional principle and to adapt this doctrine to the circumstances of international judicial process, as an informal way of founding its jurisdiction over the merits of a dispute. The resort to this doctrine has given rise to some concerns and has not received the general acceptance of states. The Certain Criminal Proceedings in France case marks the successful return of the doctrine to the ICJ and shows that the doctrine is a valuable tool for nationalists seeking to protect national interests and for internationalists seeking to promote the peaceful settlement of international disputes.
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Molineaux, Connor. "Federal-Provincial Relations and Conservatism in the Canadian West." Federalism-E 17, no. 1 (April 1, 2016): 61–75. http://dx.doi.org/10.24908/fede.v17i1.13583.
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Regionalism has been a prominent feature of Western Canadian political culture even prior to Alberta and Saskatchewan joining confederation in 1905. One manifestation of this regionalism is through intergovernmental conflict, particularly jurisdictional disputes between the provincial and federal governments. These disputes have generally seen provincial governments of various ideological leanings cooperate, and yet decentralization–or expansion of provincial jurisdiction–is a position that has largely been advanced by conservatives in recent decade.1Is there an ideological connection between expansion of provincial jurisdiction and conservatism? This essay contends that the conservative ideology particular to Western Canada was uniquely influenced by the dynamic of federal-provincial relations in Canada because of particular features of the region’s brand of conservatism. This essay will demonstrate that ongoing disputes between western provinces–Alberta in particular–and the federal government, particularly over natural resource issues, have reinforced a dynamic of regionalism within Western Canadian conservatism, leading it to become the perennial feature of conservative policy, federally and provincially, that it is today.[...]
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Trosow, Samuel E. "Jurisdictional Disputes and the Unauthorized Practice of Law." Legal Reference Services Quarterly 20, no. 4 (December 31, 2001): 1–18. http://dx.doi.org/10.1300/j113v20n04_01.
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YEFREMOVA, Iryna, and Mykola TERESHCHUK. "Problems of implementation of extrajudicial methods of protection of civil rights." Economics. Finances. Law 8, no. - (August 9, 2022): 17–21. http://dx.doi.org/10.37634/efp.2022.8.4.
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Introduction. The right to protection is one of the main powers of subjects of civil legal relations. The definition of jurisdiction in the law is aimed at eliminating the violation of the law and the influence of the subject of civil legal relations on ensuring the real exercise of civil rights. The purpose of the paper is to study the problems of applying the system of forms and methods of out-of-court settlement of civil legal disputes (conflicts) by conducting an analysis of theoretical and practical aspects. Results. The non-judicial form of protection of civil rights is determined by the possibility of choosing among the indicated methods of protection of private rights among several non-judicial (non-jurisdictional) methods of dispute resolution. This method of out-of-court settlement of a dispute (conflict), such as self-defense, is an effective way of protecting private law, but it is limited in time of application. In order to restore the trust of each of the parties, preserve relations and business reputation, the parties can use such an extrajudicial method of resolving the dispute (conflict) as negotiations. Although negotiations are defined as an effective method of out-of-court settlement of disputes with the protection of the rights and interests of citizens, there remains a risk of non-implementation or incomplete implementation of the agreements reached, which, in turn, may lead to delays in the process of timely protection of the violated right. Mediation is a relatively new out-of-court way of protecting private rights by resolving civil disputes (conflicts). When using the mediation procedure, the parties can reach a consensus, but the resolution of the dispute may go beyond the subject of the violated right. Conclusion. Out-of-court methods of protecting private rights provide an opportunity not only to resolve disputed issues outside the court, but also to save time, financial resources, preserve friendly or partnership relations, and also to go beyond the boundaries of a contentious legal dispute. relations and receive additional bonuses when defending an infringed, unrecognized or contested right.
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Polushkin, E. S. "Historical aspect of the development of the institution of subject matter jurisdiction in civil proceedings." Actual Problems of Russian Law, no. 3 (May 4, 2019): 118–24. http://dx.doi.org/10.17803/1994-1471.2019.100.3.118-124.
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The author conducts a retrospective analysis of the institution of subject matter jurisdiction in Russian civil proceedings. The institution of subject matter jurisdiction originates in the pre-revolutionary period. To determine the mechanism of delimitation of competence between jurisdictional bodies, such concepts as “exclusive jurisdiction” or “establishment” were used. During this period, a distinction was made between the competence of administrative and judicial bodies.The concept of “subject matter jurisdiction” was enshrined in Soviet legislation for the first time ever. Moreover, in the scientific literature, subject matter jurisdiction is often identified with court jurisdiction. The main task of subject matter jurisdiction in the Soviet period was the division of competence between the courts of general jurisdiction and state arbitration. During this period, the subject and object criteria for delimitation of competence between the courts of general jurisdiction and other jurisdictional bodies, which are currently used, were formulated.In the post-Soviet period, the judiciary was finally separated from the executive and the courts acquired particular significance in resolving jurisdictional disputes. All large categories of cases were transferred to the jurisdiction of the judiciary. The creation of a system of arbitration courts has led to an even greater importance of the institution of subject matter jurisdiction. It was in the post-Soviet period that the categories of “subject matter jurisdiction” and “court jurisdiction” were finally delimited. As a result of the study, the author concludes that there is some continuity in the development of the institution of subject matter jurisdiction.
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Caminos, Hugo. "The International Tribunal for the Law of the Sea: An Overview of its Jurisdictional Procedure." Law & Practice of International Courts and Tribunals 5, no. 1 (2006): 13–27. http://dx.doi.org/10.1163/157180306777156808.
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AbstractThe UN Convention on the Law of the Sea established the International Tribunal for the Law of the Sea as one of the compulsory procedures to be chosen by States for the settlement of their disputes arising out of the interpretation and application of the Convention. ITLOS became operational on 1 October 1996. As a specialized judicial forum, the jurisdiction of ITLOS is limited to matters related to the Law of the Sea. On the other hand it is open to entities other than States, "which contributes to the Tribunal's comprehensive character. The Tribunal's decisions […] are final and are required to be complied with by all the parties to the disputes. Thus except in relation to its jurisdiction, […] in other respects the Tribunal enjoys a standing comparable to the ICJ". The jurisdiction in personam of ITLOS is a remarkable innovation. The author gives an overview of the jurisdictional procedure of the Tribunal in this article.
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Del Negro Barroso Freitas, Guilherme, Lucas Carlos Lima, and Rodolfo Veloso Caetano Soares. "Left Out in The Cold?" Cadernos do Programa de Pós-Graduação em Direito – PPGDir./UFRGS 17 (December 13, 2022): 47–65. http://dx.doi.org/10.22456/2317-8558.128820.
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International Law and the Cold War is an invitation to study some of the forgotten discourses related to this period, many times unfairly associated with the idea of decay. The historical experience is often summarized with the assertion that “the Cold War period saw a decline in the commitment to international adjudication”. An examination of the judicial practice in the period is carried out, namely arbitration and decisions of the International Court of Justice (ICJ). We shall also briefly scrutinize the appearance of jurisdictional clauses in international treaties signed between 1947 and 1990. The second part of the article presents a specific instance of judicial settlement of disputes, outlining the American Treaty for the Peaceful Settlement of Disputes and the fundamental choices of the “Pact of Bogota” in relation to judicial settlement. In the third part, we zoom in on some ideas regarding international adjudication in Latin America and on the writings of some Brazilian authors – such as Haroldo Valladão – to demonstrate their perception of the phenomenon. The present analysis proves that the judicial settlement of international disputes did not depend on the collapse of the Soviet Union for coming into operation. Interstate arbitrations were very much present during the Cold War years. Jurisdictional clauses remained in vogue, a great number of treaties still being adopted that referred their disputes to the International Court of Justice. The Pact of Bogota was a groundbreaking initiative to support the jurisdiction of an international court through collective recognition, consolidating regional practice on compulsory adjudication.
KEYWORDS: Cold War; settlement of disputes; interstate arbitration; International Court of Justice; Pact of Bogota.
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Ojelabi, Lola Akin, and Mary Anne Noone. "Jurisdictional perspectives on alternative dispute resolution and access to justice: introduction." International Journal of Law in Context 16, no. 2 (June 2020): 103–7. http://dx.doi.org/10.1017/s1744552320000087.
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In many parts of the world, the adoption of alternative dispute-resolution (ADR) processes was premised on creating better access to justice for citizens, particularly those with lesser means (Woolf, 1996; Access to Justice Advisory Committee, 1994). ADR's foundational link with access to justice is in relation to not only justice as a process for the resolution of disputes, but also justice in relation to equality of access and equitable outcomes. This Special Issue focuses on the relationship between ADR and access to justice in various contexts and jurisdictions, including Australia, China, England and Wales, Scotland and Singapore, and within the family-law system in Australia. The papers engage in a critical discussion of ADR's contribution to access to justice in the resolution of disputes and, in particular, the extent to which ADR has contributed to improved access to justice. In doing this, the papers highlight the role of access-to-justice discourse in the development and growth of ADR; where available, review evaluations of access to justice in relation to ADR initiatives; and, finally, reflect on the future of ADR and access to justice.
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Bogdanova, E. E. "Procedural Status of Children Protective Services in Court Disputes Concerning Upbringing of Children." Lex Russica, no. 2 (February 1, 2019): 41–47. http://dx.doi.org/10.17803/1729-5920.2019.147.2.041-047.
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The article highlights that when disputes concerning upbringing of children are being dealt with by the courts, custody and guardianship authorities may act both as a procedural claimant and as a state authority competent to give an opinion on the merits of the dispute. In cases provided for by law, custody and guardianship authorities are entitled to perform the functions of a jurisdictional body, as well as to participate in proceedings as a defendant.
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Talmon, Stefan. "THE CHAGOS MARINE PROTECTED AREA ARBITRATION: EXPANSION OF THE JURISDICTION OF UNCLOS PART XV COURTS AND TRIBUNALS." International and Comparative Law Quarterly 65, no. 4 (October 2016): 927–51. http://dx.doi.org/10.1017/s0020589316000403.
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AbstractThis article shows that the Tribunal in the Chagos Marine Protected Area Arbitration between Mauritius and the United Kingdom has contributed considerably to the creeping expansion of compulsory jurisdiction of courts and tribunals established under Part XV of the United Nations Convention on the Law of the Sea (UNCLOS). The Tribunal has employed three techniques to do so. First, it has read down the jurisdictional precondition to exchange views in Article 283(1) of the UNCLOS; second, it has expanded the limited scope of compulsory subject-matter jurisdiction under section 2 of Part XV by broadening the meaning of the phrase ‘any dispute concerning the interpretation or application of this Convention’ to include incidental, related—and through the backdoor of a balancing exercise—even extraneous disputes; and, third, it has restricted the limitations and exceptions to compulsory jurisdiction in Articles 297 and 298 of the UNCLOS. Few would have predicted in 1982 that a Part XV court or tribunal would—within the context of such a balancing exercise—ever find that a colonial era undertaking created binding legal obligations under international law and that the United Kingdom was obliged to return the Chagos Archipelago to Mauritius when no longer needed for defence purposes. The Tribunal's expansive reading of the jurisdictional provisions in Part XV opens up the possibility of future rulings, albeit incidentally, on issues that have little to do with the law of the sea.
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Churchill, Robin. "The Jurisprudence of the International Tribunal for the Law of the Sea Relating to Fisheries: Is There Much in the Net?" International Journal of Marine and Coastal Law 22, no. 3 (2007): 383–424. http://dx.doi.org/10.1163/157180807781870336.
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AbstractThis paper provides a comprehensive survey of all matters related to the jurisprudence of the International Tribunal for the Law of the Sea relating to fisheries. An overview of the main provisions of the LOSC on the matter serves as an introduction. The author then expounds on the scope of the Tribunal's jurisdiction relating to fisheries in great detail while differentiating between its jurisdiction to deal with the substance of fisheries disputes on the one hand and provisional measures as well as prompt release orders on the other hand. He concludes that while the Tribunal theoretically has jurisdiction to deal with fisheries disputes not only arising from the LOSC and the UN Fish Stocks Agreement but also from over 20 other treaties, it has so far rarely been called on to do so. Nevertheless, the Tribunal has made a not insignificant impact on international fisheries law. This becomes obvious in the course of the following analysis of its jurisprudence on these matters. Before turning towards his final remarks, the author considers the prospects for the development of the Tribunal's fisheries jurisprudence. He concludes that it is difficult to predict the extent to which the Tribunal may be asked to resolve fisheries disputes and thus given an opportunity to develop its jurisprudence, but points out both that States have historically been reluctant to refer fisheries disputes to binding third-party settlement and that there are considerable jurisdictional obstacles to the Tribunal hearing fisheries disputes.
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Poesen, Michiel. "Civil Litigation Against Third-Country Defendants in the EU: Effective Access to Justice as a Rationale for European Harmonization of the Law of International Jurisdiction." Common Market Law Review 59, Issue 6 (December 1, 2022): 1597–632. http://dx.doi.org/10.54648/cola2022113.
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The European Union has taken on an active role in harmonizing the law of international jurisdiction over civil and commercial court disputes. However, the jurisdictional rules contained in the key instrument in the area – the Brussels Ia Regulation – only apply to disputes involving EU-based defendants, save for a few exceptions where defendants domiciled in third countries are also covered. This article will explore the rationale for harmonizing the law of jurisdiction applicable to third-country defendants. This central theme is of particular interest, since further harmonization is once again on the EU’s agenda because of the upcoming revision of the Brussels Ia Regulation. The article will outline that proposals for harmonization are rooted in the aspiration to further effective access to justice. Moreover, it will demonstrate that far from a readily implementable programme, furthering access to justice is a multifaceted aim, the pursuit of which potentially has profound ramifications for the EU rules on civil jurisdiction. civil litigation, third-country defendants, law of jurisdiction, PIL, conflict of laws, Brussels Ia Regulation, harmonization
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YEFREMOVA, Iryna. "Peculiarities of protection of private rights by non-jurisdiction methods of settlement of legal disputes (conflicts)." Economics. Finances. Law, no. 6/1 (June 30, 2021): 23–29. http://dx.doi.org/10.37634/efp.2021.6(1).5.
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Introduction. Adoption of new laws of civil and substantive law, the novelty of legal relations governed by the rules of these laws, the complexity of civil conflicts arising from these legal relations, require a high level of legal protection, compliance with the rule of law by all members of society. Only the law allows interested parties to choose the form of protection. This form can be traditional – jurisdictional (provides for the establishment of a body and procedure for the protection of violated rights), and non-jurisdictional (but certainly allowed by law), which may resort to interested parties. obstacle to the exercise of the right. Resolution of legal conflicts is possible not only through a jurisdictional form of protection. A non-jurisdictional form of protection of civil rights is the independent protection of a person of his violated rights. That is, the person does not apply to the competent state authorities. In fact, it is the commission of actual actions aimed at protecting and securing their personal property and other non-property rights. The purpose of the paper is a thorough study of models of non-jurisdictional protection of property rights in the system of protection of civil rights by analyzing the theoretical and practical aspects of using alternative methods of protection of private rights in general and mediation. Result. It is determined that the non-jurisdictional form of protection of civil rights is the actions of citizens and organizations aimed at protecting their own civil rights, freedoms, and legally protected interests. It is noted that these actions are carried out and implemented by eligible entities independently, without seeking legal assistance from government agencies and structures, as well as officials. It is determined that the mechanism of legal protection is implemented in non-jurisdictional ways in the field of legal regulation when it is necessary to overcome and eliminate obstacles that arise in the exercise of rights and legitimate interests of the subject of law, in other words – to quickly protect (ensure) legal status. It is determined that in international practice, namely in European countries, the basis of non-jurisdictional protection of property rights is mainly in the use of negotiation and mediation procedures. Non-jurisdictional form, which is usually local in nature, is achieved as a result of actual actions, occurs not in jurisdictional or procedural forms, but within the protected substantive legal relations, which are the subjects of such legal relations (usually imply The main difference between jurisdictional and non-jurisdictional forms of protection of rights is that the protection of rights in jurisdictional form is carried out by the competent state and public authorities with each of them a certain procedural order of activity, while protection in a non-jurisdictional form takes place within the framework of a substantive legal relationship and is carried out by the parties themselves in the legal relationship. Conclusion. The study proves that in Ukraine, priority should be given to the development of various forms of out-of-court dispute resolution. The basis for this should be the legislative consolidation of out-of-court settlement of civil disputes as one of the basic principles of protection of violated private rights (of course, without revoking or replacing the right to judicial protection). Non-jurisdictional methods of protection of private rights are defined in the legislation of Ukraine and can be used due to the dispositive nature of the civil law method of regulation. However, this is insufficient, as participants in civil legal relations in case of violation of their rights are primarily confronted in the law with a defined right to judicial protection of violated rights, and often consider the court as the only possible form of protection.
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Bulovsky, Andrew T. "The over- and under-enforcement of anti-corruption law in investment disputes and international development." Cambridge International Law Journal 9, no. 2 (December 1, 2020): 264–93. http://dx.doi.org/10.4337/cilj.2020.02.08.
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Since the early 2000s, anti-corruption enforcement has become increasingly entangled with international investment. This entanglement has created a paradox: the simultaneous over- and under-enforcement of anti-corruption law. Over-enforcement occurs when authorities from multiple jurisdictions subject companies to duplicative enforcement actions and disproportionate penalties for the same underlying conduct. Under-enforcement occurs when local courts and arbitral tribunals insulate the demand side of corruption from liability by failing to exercise jurisdiction over corruption-tainted disputes. Both over- and under-enforcement result in part from unilateralism, whereby States pursue their own interests at the expense of international legal objectives. The over- and under-enforcement of international anti-corruption law undermines anti-corruption law itself, makes investment riskier in developing States and inhibits developmental objectives. To correct for over-enforcement, this article proposes formal commitments from States that the State with the strongest jurisdictional ties to a corruption scandal retains investigative priority. To correct for under-enforcement, this article suggests that local courts and arbitral tribunals invoke equitable estoppel to accept jurisdiction over corruption-tainted disputes and use a contributory-fault approach to hold both the supply side and the demand side of corruption accountable. These solutions would likely prove efficacious in agreements between States and contracts between States and potential investors. Ultimately, this article frames anti-corruption enforcement trends in the context of unilateralism and discusses practicable solutions for a more proportional anti-corruption law regime.
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Risso, Giorgio, and Anna Chiara Amato. "Pleas of illegality and the application of domestic law in investment treaty arbitration." Cambridge International Law Journal 9, no. 1 (June 25, 2020): 96–116. http://dx.doi.org/10.4337/cilj.2020.01.05.
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It is generally accepted that State Parties can rely on ‘in accordance with the host State law’ clauses (or legality clauses) with a view to curtailing arbitral tribunals' jurisdiction to disputes arising from lawful investments. Given the increasing attention dedicated to legality in modern investment treaty practice, it is likely that ‘in accordance with the host State law’ clauses will continue playing an important role in arbitration proceedings. In light of the foregoing, this article examines how arbitral tribunals interpret and apply domestic law when dealing with jurisdictional challenges based on pleas of illegality. Drawing upon the limitations to legality clauses elaborated by the case law, the authors demonstrate that tribunals tend to adopt an ‘international’ approach in interpreting and applying domestic law. The authors explain why this international approach is fundamentally flawed and suggest an alternative approach to use in future disputes.
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Lykholat, Iryna. "Jurisdictional Means of Adjustment and Solving Legal Disputes in Ukraine." NaUKMA Research Papers. Law 1 (December 27, 2018): 15–20. http://dx.doi.org/10.18523/2617-2607.2018.15-20.
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RAY, REEJU. "Interrupted Sovereignties in the North-East Frontier of British India, 1787–1870." Modern Asian Studies 53, no. 2 (January 31, 2019): 606–32. http://dx.doi.org/10.1017/s0026749x17000257.
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AbstractThe Khasi, Jaintia, and Garo Hills in the North East Frontier of British India were subject to shifting and differentiated forms of colonial governance. Defying notions of coexistence with or autonomy from colonial rule, the colonial history of this region was bound up with specific spatio-temporal constructions. By examining the nature of jurisdictional and political encounters in the Khasi, Jaintia, and Garo Hills, this article addresses the interruptions to imperial sovereignty in the Frontier. Imperial sovereignty moved in juridical forms, affecting and being affected by classificatory challenges such as hills and plains, hill tribal, and settler. The relationship between jurisdictional boundaries, plural authority, and imperial sovereignty appears in judicial and revenue files of different levels of the English East India Company government and the British government. Recurrent boundary disputes between the spatio-temporal units of hills and plains during the late eighteenth and late nineteenth centuries point towards contingent strategies of governance. The unfolding of these disputes over the course of the nineteenth century also show that law and jurisdiction as carriers of imperial sovereignty were spatially and temporally uneven. The historical processes highlighted in this article concern the sub-region of Khasi, Jaintia, and Garo Hills and parts of the Sylhet district of British Bengal, which, at present, constitute the Indian state of Meghalaya and parts of northern Bangladesh, respectively.
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Betancourt, Julio Cesar. "Reexaminando la noción de Resolución Alternativa de Disputas (ADR) en el contexto del derecho de acceso a la justicia ‘no jurisdiccional’ = Reexamining the notion of Alternative Dispute Resolution (ADR) in the context of the right of access to ‘non-jurisdictional’ justice." CUADERNOS DE DERECHO TRANSNACIONAL 10, no. 2 (October 5, 2018): 211. http://dx.doi.org/10.20318/cdt.2018.4376.
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Resumen: La noción de “Resolución Alternativa de Disputas”, generalmente conocida como “ADR”, ha recibido una importante acogida por parte de la literatura del common law y lo mismo puede decirse en cuanto sus principales categorías (negociación, mediación y arbitraje). ADR, lato sensu, se refiere a la idea de utilizar toda una gran variedad de mecanismos no jurisdiccionales destinados a prevenir, manejar, resolver o solucionar conflictos intersubjetivos. De modo que la expresión resolución alternativa de disputas es, en cierta manera, insuficiente para suministrar una visión integral de todas las opciones (o alternativas) disponibles. Este artículo reexamina la noción de ADR y proporciona una novedosa visión del pasado, presente y futuro de esta relativamente nueva disciplina.Palabras clave: ADR, resolución alternativa de disputas, acceso a la justicia.Abstract: The notion of “Alternative Dispute Resolution”, commonly known as “ADR”, has received considerable attention in common law literature, and the same can be said about the main ADR categories (negotiation, mediation and arbitration). ADR, lato sensu, refers to the idea of utilising a wide variety of non-jurisdictional mechanisms that are intended to prevent, manage, resolve or settle disputes. Thus, the expression alternative dispute resolution is, somewhat, technically insufficient to account for the whole range of options (or alternatives) available. This article re-examines the notion of ADR and provides a novel insight into the past, present and future of this relatively new discipline.Keywords: ADR, alternative dispute resolution, access to justice.
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Sandler, Daniel, and Lisa Watzinger. "Disputing Denied Downward Transfer-Pricing Adjustments." Canadian Tax Journal/Revue fiscale canadienne 67, no. 2 (2019): 281–308. http://dx.doi.org/10.32721/ctj.2019.67.2.sandler.
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This article considers the appropriate forum for disputing a denied downward transfer-pricing adjustment under subsection 247(10) of the Income Tax Act ("the ITA"). It begins by describing various scenarios in which a request for a downward transfer-pricing adjustment may arise, examines the delegation to officials at the Canada Revenue Agency (CRA) of the authority to grant the adjustment, and outlines the CRA's administrative practice on when to grant such adjustments. It then explores whether the Federal Court or the Tax Court of Canada is the appropriate forum to adjudicate a denied downward transfer-pricing adjustment. For disputes under the ITA, the division of jurisdiction between the two courts is generally well defined. The Tax Court has the exclusive jurisdiction to determine the correctness of an assessment whereas the Federal Court has the exclusive jurisdiction to review discretionary decisions of the minister of national revenue or officials at the CRA to whom the minister's powers have been delegated. This jurisdictional divide is less clear for disputes in respect of a denied downward transfer-pricing adjustment. Subsection 247(10) is the only provision in the ITA under which the correct determination of a taxpayer's income is subject to ministerial discretion. The exercise of ministerial discretion suggests that the appropriate forum to dispute a denied transfer-pricing adjustment is the Federal Court. However, subsection 247(11) specifies that the mechanisms for resolving all transfer-pricing disputes under part XVI.1 of the ITA are through the objection and appeal process in part I of the ITA. The language of subsection 247(11), coupled with its legislative history, the restrictions on the Federal Court's jurisdiction, and practical considerations regarding transfer-pricing disputes, all suggest that the Tax Court is the appropriate forum to consider a denied downward transfer-pricing adjustment. Historical case law from the Exchequer Court supports this conclusion. However, there are scenarios in which a denied downward transfer-pricing adjustment may not result in a notice of assessment being issued, and therefore no clear right of appeal to the Tax Court may exist. To ensure that the Tax Court has the jurisdiction to review all denied downward transfer-pricing adjustments, and not only those that result in an assessment, the authors recommend that part XVI.1 of the ITA be amended to include language requiring the minister to issue an assessment in all cases in which a downward transfer-pricing adjustment is denied.
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Kobzeva, T. A., and I. O. Kulish. "Mediation procedure in Ukrainian realities." Legal horizons, no. 25 (2020): 34–38. http://dx.doi.org/10.21272/legalhorizons.2020.i25.p34.
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In the modern world, the mechanisms of self-regulation become especially important, when the subjects of public relations have the opportunity to independently establish rules of conduct and monitor their observance. The growth of activity and responsibility of participants in civil turnover allows the state to delegate part of its powers in certain areas to civil society institutions. Reconciliation of the parties is one such institution. Today in Ukraine, court proceedings and other jurisdictional mechanisms for reviewing and resolving disputes are the main ways to protect violated rights, freedoms and legitimate interests. However, there is no denying that in today's conditions of formation and dynamic development of civil society, they are often not effective enough. Participants in disputed legal relations are becoming increasingly interested in selfsettlement of disputes arising between them. One of the alternative methods of conflict resolution is mediation. Mediation, as an effective method of pre-trial settlement of disputes, is recognized by the European Community, which recommends its introduction as the main method of alternative dispute resolution at the pre-trial stage and during court proceedings. Mediation procedure, as an effective method of pre-trial settlement of disputes, is relevant for almost all types of legal relations, but unfortunately is not always used, due to the fact that for a long time there was no relevant legislation that could clearly and effectively to settle relations in the field of mediation. On July 15, 2020, the draft Law on Mediation was adopted in the first reading. will provide an opportunity to unload the judiciary and provide a mechanism for the implementation of protection of fundamental human and civil rights and freedoms in our country, as in a modern European state. The scientific work determines the correct use of the mediation procedure and its implementation to today's Ukrainian realities.
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Kurasha, Primrose E. R. "South Africa's jurisdictional challenge with the under-development of cross-border commercial litigation: Litigation v Arbitration." De Jure 55, no. 1 (April 20, 2022): 1–27. http://dx.doi.org/10.17159/2225-7160/2022/v55a1.
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Private international law is a globally established field of law however, its pre-eminence in Africa is insignificant and this has been as a result of its relevance, which according to many scholars is arguable. It follows logically therefore, that it is underdeveloped in Africa, and as this article posits, specifically in South Africa. This article advocates for the development of South African private international law by endorsing South Africa as a viable neutral jurisdiction venue for cross-border commercial disputes, in future. According to this article, this is to be achieved by the recognition of neutral jurisdiction clauses in South African courts. This can only be done by developing an effective and just system of cross-border/trans-national litigation. The proposed sound cross-border jurisdictional rules will supplement the newly established transnational arbitration regime. In order to achieve this, this research reflects an integrated comparative approach by establishing comparative perspectives mainly from the UK, USA, Brazil, Kosovo and South Africa.1 Based on its constitutional values of inalienable human rights and access to courts (justice), South Africa stands to gain immensely from incoming commercial arbitration and commercial litigation as forms of dispute resolution. This will establish the country as the preferred venue for arbitration and litigation on the African continent and beyond.
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Makharynetsʹ, D. "JURISDICTIONAL ACTIVITY OF ADMINISTRATIVE COURTS IN THE CONDITIONS OF FORMATION OF LEGAL SOCIETY." Scientific notes Series Law 1, no. 10 (July 2021): 74–79. http://dx.doi.org/10.36550/2522-9230-2021-10-74-79.
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Moving along the path of European integration, Ukraine is carrying out state-building and building civil society on the basis of the concept of human-centeredness, introducing modern approaches to determining the role of the state and its organs in the life of man and the average citizen. One of the directions of the introduced reforms is the sphere of ensuring human and civil rights, creating conditions for the protection of these rights in case of their violation or encroachment on them. Of particular importance in this context is the creation of conditions that guarantee the provision of citizens with their subjective rights in relations with public administration bodies. The form of realization of the right to protection from illegal actions and decisions of public authorities is administrative justice, ensuring the establishment of law and order in the field of public administration. Therefore, the need to determine the features that reveal and characterize the essence of the jurisdictional activities of administrative courts in the formation of a legal society becomes relevant. The purpose of the article is to determine the features that reveal and characterize the essence of the jurisdictional activity of administrative courts in the conditions of formation of a legal society on the basis of the theory of administrative law and process, scientific views of administrators, norms of current legislation. The article examines the legal category "jurisdiction", "administrative jurisdiction" and describes the jurisdictional activities of administrative courts as a type of law enforcement and law enforcement activities in the implementation of legal protection in public law disputes, highlights the characteristics of jurisdictional activities.
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Proulx, Vincent-Joël. "The Marshall Islands Judgments and Multilateral Disputes at the World Court: Whither Access to International Justice?" AJIL Unbound 111 (2017): 96–101. http://dx.doi.org/10.1017/aju.2017.25.
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The International Court of Justice (ICJ) has mostly emphasized substance over form and developed a pragmatic, flexible, objective, and fact-based analytical approach to jurisdiction. That is until a recent series of judgments veering towards jurisdictional formalism. However, to truly reflect its designation as the “World” Court, the UN's principal judicial organ must surely adjudicate some of the “big cases” with global security implications and involving important obligations erga omnes beyond strictly bilateral dynamics: the Marshall Islands cases were as good contenders as any for the Court to enhance its legitimacy capital.1 As a corollary, accepting this role might entail that the Court interpret its jurisdiction in a flexible and progressive manner, which had always been its mantra up until recently, so that the “big cases” have a chance of getting their foot in the door and being litigated.
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Zhang, Yuan, Guo Fu, Tao Yu, Manhong Shen, Wei Meng, and Edwin D. Ongley. "Trans-jurisdictional pollution control options within an integrated water resources management framework in water-scarce north-eastern China." Water Policy 13, no. 5 (April 26, 2011): 624–44. http://dx.doi.org/10.2166/wp.2011.009.
Full textAbstract:
The extent and severity of water pollution in China is well known, as is the fact that until the 11th Five Year Plan (FYP) in 2006, much greater importance was placed on economic growth than environmental protection. There were few incentives to reduce pollution owing to an inadequate legal framework, the absence of economic measures for pollution control in favour of a command-and-control approach, and weak enforcement. Passing through four provinces and Tianjin Municipality, Zhangweinan River (Canal) Basin, part of the water-scarce Haihe River system in north-eastern China, provides an example of the types of trans-jurisdictional water pollution disputes that are common throughout China owing to inadequate application of integrated water resources management (IWRM) principles. The Zhangweinan River has a decreasing flow downstream and virtually zero assimilation capacity owing to waste loads that are vastly larger than the assimilation capacity of the river system. The fact that these trans-jurisdictional issues keep arising and, for the most part, are never resolved, reflects the failure of IWRM governance in this basin. We explore legal, institutional, planning, technical and market measures that would greatly reduce trans-jurisdictional disputes and contribute to successful IWRM in China.
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Dimetto, Marco. "“To Fall, or Not to Fall, That Is the (Preliminary) Question”: Disputes, Compromissory Clauses and Swinging Jurisdictional Tests at the ICJ." Law & Practice of International Courts and Tribunals 21, no. 1 (March 15, 2022): 5–34. http://dx.doi.org/10.1163/15718034-12341464.
Full textAbstract:
Abstract More and more frequently, states resort to the ICJ, claiming the violation of international treaties and attempting to ground the jurisdiction of the Court on compromissory clauses contained therein. Despite the growing number of such cases, an analysis of recently rendered judgments on preliminary objections demonstrates that until now the Court has been unable or unwilling to identify and apply a coherent jurisdictional test to assess its jurisdiction ratione materiae. Some suggestions are formulated as for the test that the Court should apply to determine whether the claims presented by the applicant genuinely fall within the provisions of the international treaty containing the compromissory clause vel non.
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Golovko, Vladimir V. "Administrative and jurisdictional activity: the issues of concept and content." Law Enforcement Review 2, no. 1 (April 12, 2018): 104–13. http://dx.doi.org/10.24147/2542-1514.2018.2(1).104-113.
Full textAbstract:
The subject. The article defines the modern content of the following concept: administrative procedure, administrative jurisdiction.The purpose of the study is to identify the correlation between the concepts of administrative procedure and administrative jurisdiction.The methodology includes methods of complex analysis and synthesis of the Russian legislation and scientific sources, as well as formal-logical and formal-legal methods.The main results and scope of application. The administrative process and administrative procedures are not regulated properly nowadays. The results of scientific research indicate a discrepancy in the interpretation of the concept of “administrative process”. An administrative process consists of management and administrative jurisdiction (proceedings).Process and production correlate as general and special phenomena.The administrative process, which manifests itself specifically in various types of administrative proceedings, is a set of consistently performed procedural actions, which are performed at certain stages during the consideration of individual specific cases by the competent authorities.Administrative jurisdiction in the broad sense may be understood as totality of the powers of state or municipal bodies, established by the law or other normative legal acts, to regulate social relations, to assess the legality of actions of a person, to resolve legal disputes and to consider cases on administrative offences, to carry out other legally significant actions.Conclusions. Administrative jurisdictional activity (public, regulatory, regulative, enforcement), is connected with the solution of legal disputes. It is based on the law and is clearly regulated by it, it is carried out by special bodies, it’s result is the regulation of public relations and imposing administrative responsibility to the offenders.