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Journal articles on the topic 'Ultra vires doctrine'
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1
Belosludtsev, OLEG. "Doctrine “counter-limits” and doctrine “ultra vires” in the context of protection of national constitutional identity." Sociopolitical sciences 10, no. 6 (December 28, 2020): 98–105. http://dx.doi.org/10.33693/2223-0092-2020-10-6-98-105.
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The article is devoted to the study of the connection between the doctrine of constitutional identity with the doctrine of “counter-limits” and the doctrine of “ultra vires”. All these concepts are applied in the practice of European constitutional courts in cases related to the resolution of conventionally constitutional conflicts. Since the doctrine of “constitutional identity” in domestic theory and practice is in its infancy, in the author’s opinion, it is necessary to take into account the foreign experience of protecting national constitutional identity. And also carefully consider all related concepts, such as the doctrine of counter-limits and the doctrine of “ultra vires”, paying special attention to the topic of their relationship. The author, analyzing the doctrine of “counter-limits” and the doctrine of “ultra vires”, comes to the conclusion that these doctrines, along with other instruments for protecting national constitutional identity (the doctrine of the margin of appreciation), can be used in relation to the dispute between the Constitutional Court of the Russian Federation and the ECHR on “the right of the last word”.
2
Nyombi, Chrispas. "The gradual erosion of the ultra vires doctrine in English company law." International Journal of Law and Management 56, no. 5 (September 2, 2014): 347–62. http://dx.doi.org/10.1108/ijlma-08-2012-0027.
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Purpose – The purpose of this paper is to discuss the doctrine of ultra vires and its development over time, which is claimed to be one of gradual erosion. Design/methodology/approach – This paper discusses the doctrine of ultra vires and its development overtime, which is claimed to be one of gradual erosion. Findings – It shows how the abolition of the objects clause has signalled the end of ultra vires. Today, it remains nothing more than a ghost, but one which continues to haunt management. Originality/value – It builds on existing research literature.
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Hertanto, Ari Wahyudi. "PELUANG PEMULlHAN T1NDAKAN ULTRA VIRES D1REKSI SUATU PERSEROAN TERBATAS." Jurnal Hukum & Pembangunan 37, no. 1 (February 21, 2007): 22. http://dx.doi.org/10.21143/jhp.vol37.no1.147.
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AbstrakThis article does trying to give more horizon regarding two mainstreams onultra virus doctrine's. The conservative propositions is said on the rigidnature of the doctrine whilst the another has thought on the flexibilitytoward the principle. Those flexibility is embarks from their existence whichabsolutely needs within any modification thats still available. But then howfar through modification can be done will invite also the relevance factor'sitself. In case of any misconduct done (ultra vires) by the companymanagement (direction boards member·s). so it shall punish them underunlimited responsibility and can be personally alleged. The general principleconsidered is that the company management boards ought to comply and runlaw and regulations. company by laws. share holders meeting within alsonorms inside of fiduciary duties doctrine's
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Qtaishat, Ali Khaled. "The Doctrine of Ultra Vires: Commendable or Condemnable!" Asian Social Science 16, no. 5 (April 30, 2020): 148. http://dx.doi.org/10.5539/ass.v16n5p148.
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This study investigates principally the doctrine of Ultra Vires in the English law. It aims at crystalizing the ramifications of applying this act to the English Commercial Law throughout several eras, taking into account the impact of abiding by the Ultra Vires act on the parties involved in the concerned transactions; i.e. the concerned shareholders and creditors. Furthermore, the study attempts to decipher the puzzling matter which concludes whether the doctrine in question must be cherished or perished in the English legal system.
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Allan, T. R. S. "THE CONSTITUTIONAL FOUNDATIONS OF JUDICIAL REVIEW: CONCEPTUAL CONUNDRUM OR INTERPRETATIVE INQUIRY?" Cambridge Law Journal 61, no. 1 (March 7, 2002): 87–125. http://dx.doi.org/10.1017/s000819730200154x.
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THE essay questions the sense and purpose of current debate over the coherence of the ultra vires doctrine. It argues that the dispute is mainly semantic, serving to conceal rather than illuminate genuine questions about the nature and legitimacy of judicial review. If the doctrine’s opponents are right to emphasise the common law basis of the relevant standards of legality, abstractly conceived, the ultra vires school is equally right to insist that, in a statutory context, legislative intention is critical to the application of such standards. To connect the present debate with significant issues of substance, it would have to be recast as one between those favouring a “normativist” grounding of judicial review in the rule of law, on the one hand, and their “functionalist” or “pluralist” opponents, generally hostile to judicial review, on the other. The futility of the present debate is revealed by the simultaneous adherence of both sides to an integrated “rule of law” perspective. A useful analysis of the foundations of judicial review, capable of illuminating issues of substance, must explore the true meaning of the interrelated concepts of parliamentary sovereignty and the rule of law. No attack on the “empty formalism” of the ultra vires doctrine can carry conviction while at the same time affirming the doctrine of absolute parliamentary sovereignty, a doctrine equally malleable in the hands of judicial interpreters of statute, guided by common law precepts.
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Craig, Paul. "Ultra Vires and the Foundations of Judicial Review." Cambridge Law Journal 57, no. 1 (March 1998): 63–90. http://dx.doi.org/10.1017/s0008197300134397.
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There is a growing literature concerning the role of the ultra vires doctrine and its place within administrative law. For some the doctrine is the central principle of administrative law, without which judicial intervention would rest on uncertain foundations. For others, it constitutes at best a harmless fiction, which is incapable of explaining all instances of judicial intervention, and at worst a device which allows the judiciary to conceal the real justifications for developments in judicial review. Christopher Forsyth falls into the former camp. He has written a vigorous defence of the ultra vires principle, contending that “it remains vital to the developed law of judicial review”. The purpose of this article is to contribute to the debate on this issue by putting the opposing view. The article will be divided into four sections.
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Elliott, Mark. "The Ultra Vires Doctrine in a Constitutional Setting: Still the Central Principle of Administrative Law." Cambridge Law Journal 58, no. 1 (March 1999): 129–58. http://dx.doi.org/10.1017/s0008197399001075.
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THERE is currently a good deal of disagreement concerning the constitutional justification for judicial review in English law. The ultra vires doctrine holds that review is simply a function of legislative intention. In contrast, a number of commentators argue that administrative law is a body of judge-made common law which is unrelated to the will of Parliament. The truth lies somewhere between these two poles.The traditional ultra vires doctrine is unsatisfactory because, inter alia, it is unrealistic to assert that judicial review constitutes nothing more than the implementation of legislative intention. However, the attempt of some commentators to exclude intention from the justification for review is equally deficient since this is an affront to the sovereignty of Parliament. By locating the interpretative methodology of ultra vires within its proper constitutional setting and by recognising the importance of the rule of law to the process of statutory construction, it is possible to articulate an explanation of judicial review which is consistent with Parliament's legislative supremacy while avoiding the shortcomings of the traditional ultra vires principle (notably its inability satisfactorily to explain the derivation of the grounds of review; the courts' treatment of ouster clauses; the development of administrative law across time, and the extension of judicial review to non-statutory powers).
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Schneider, Karsten. "Gauging “Ultra-Vires”: The Good Parts." German Law Journal 21, no. 5 (July 2020): 968–78. http://dx.doi.org/10.1017/glj.2020.61.
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AbstractThe Federal Constitutional Court’s ultra-vires case law—especially its most recent iterations—has more than its fair share of bad parts. It went from non-existence to global prominence in an alarmingly short period of time. Fortunately, the doctrine contains some extraordinarily good parts. Within the case law, there are three beautiful, elegant, and highly expressive elements that are buried under a massive tower of good intentions and hard luck: First, the principle of distinction between the two concepts of responsibility and accountability, second, the ban on transferring blanket empowerments, and third, the idea of a “program of integration” as a good medium for expressing vague ideas. In combination, these elements constitute a constitutional mechanism that does not play hell with European law, but truly complements any union based on multi-level cooperation. Focusing on the good parts—and avoiding some bad parts—might help prospective ultra-vires reviews to steer clear of wreaking havoc. The subset of good parts can serve to shift the constitutional case law towards reliability, readability, robustness, foreseeability, and, if nothing else, explicability.
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Forsyth, Christopher. "Of Fig Leaves and Fairy Tales: The Ultra Vires Doctrine, the Sovereignty of Parliament and Judicial Review." Cambridge Law Journal 55, no. 1 (March 1996): 122–40. http://dx.doi.org/10.1017/s0008197300097762.
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The doctrine of ultra vires has been aptly described by Sir William Wade as “the central principle of administrative law” but in recent years it has been subjected to criticism. First the academics weighed in and, increasingly, eminent judges speaking or writing extra-judicially have described the doctrine as a “fairy tale” or a “fig leaf” and declared its redundancy and lack of utility.
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Rokhim, Abdul. "TINDAKAN ULTRA VIRES DIREKSI DAN AKIBAT HUKUMNYA BAGI PERSEROAN TERBATAS." Yurispruden 4, no. 1 (January 25, 2021): 86. http://dx.doi.org/10.33474/yur.v4i1.9214.
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ABSTRACTThe Actions of the Board of Directors are legally qualified as the actions of the Company as a legal entity if carried out by the authority and objectives of the Company as stated in the company's articles of association. The actions of directors that are carried out outside the authority or beyond the authority(ultra vires)cannot be qualified as the actions of the company. As a result, such legal action is not binding on the Company and only binds the Board of Directors personally with third parties. The problems examined are the limits of authority of the Board of Directors according to the UUPT and the doctrine and concept of ultra vires directors. Types of normative juridical research with conceptual approach and statute approach. The actions of the board of directors as long as it is carried out within the limits of the authority granted by the law and the articles of association of PT(intra vires)are legally viewed as the actions of PT as a legal entity. Actions of the Board of Directors that are carried out outside the authority or exceed their authority as stipulated in the laws and articles of association of PT(ultra vires)the Board of Directors must be personally responsible with third parties.Keywords: Ultra Vires Action; Board of Directors; Limited Liability Company ABSTRAKTindakan Direksi secara hukum dikualifikasi sebagai tindakan perseroan selaku badan hukum apabila dilakukan sesuai dengan kewenangan dan tujuan perseroan sebagaimana tercantum dalam anggaran dasar perseroan. Tindakan direksi yang dilakukan di luar kewenangan atau melampaui kewenangan (ultra vires) tidak dapat dikualifikasi sebagai tindakan perseroan. Akibatnya, tindakan hukum tersebut tidak mengikat perseroan dan hanya mengikat Direksi secara pribadi dengan pihak ketiga. Permasalahan yang diteliti yaitu batas-batas kewenangan Direksi menurut UUPT dan doktrin dan konsep ultra vires direksi. Jenis penelitian yuridis normatif dengan pendekatan konsep (conceptual approach) dan pendekatan peraturan perundang-undangan (statute approach). Tindakan direksi sepanjang dilakukan dalam batas-batas kewenangan yang diberikan oleh undang-undang dan anggaran dasar PT (intra vires) secara hukum dipandang sebagai tindakan PT selaku badan hukum. Tindakan Direksi yang dilakukan di luar kewenangan atau melampaui kewenangannya sebagaimana diatur dalam undang-undang dan anggaran dasar PT (ultra vires) Direksi harus bertanggung jawab secara pribadi dengan pihak ketiga.Kata Kunci: Tindakan Ultra Vires; Direksi; Perseroan Terbatas
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Dewi, Sandra. "MENGENAL DOKTRIN DAN PRINSIP PIERCING THE CORPORATE VEIL DALAM HUKUM PERUSAHAAN." Soumatera Law Review 1, no. 2 (October 31, 2018): 380–99. http://dx.doi.org/10.22216/soumlaw.v1i2.3744.
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Business entities in the business world are well-known that are already in the form of companies or those that are not yet companies. Based on its legal form, the company is divided into two, namely companies with legal status and those that are not legal entities. As an independent legal entity pursuant to Article 3 paragraph (1) the Limited Liability Company Law stipulates that the responsibility of PT shareholders is limited to the value of shares held in the company. Economically, the element of limited liability of the company's shareholders is an important factor as a motivating bait for the willingness of prospective investors to invest in the company. The formulation of the problem in this paper is: 1) how the piercing doctrine of the corporate veil in corporate law and 2) how to apply the principle of piercing the corporate veil in Indonesia. The type of writing used in this writing is a type of normative legal research. The doctrine of piercing the corporate veil in corporate law can be seen from: a) piercing the corporrate veil; b) the doctrine of fiduciary duty; c) self dealing transaction doctrine; d) doctrine corporate opportunity; e) doctrine businnes judgment rule; f) ultra vires and intra vires. Application of the Piercing Principles of the Corporate Veil in Indonesia: a) company shareholders; b) company founder; c) company directors; and d) commissioners of limited liability companies.
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Sauer, Heiko. "Doubtful it Stood…: Competence and Power in European Monetary and Constitutional Law in the Aftermath of the CJEU's OMT Judgment." German Law Journal 16, no. 4 (September 1, 2015): 971–1002. http://dx.doi.org/10.1017/s2071832200019969.
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Quite unsurprisingly, the CJEU has held that the ECB's OMT program does not violate EU law. In accordance with this holding, I argue in the first part of this note that the OMT program does not transgress the ECB's mandate under the Treaty, which is often interpreted too narrowly, in particular by German legal scholars. Furthermore, I argue that a violation of the prohibition of monetary financing of the member States as enshrined in article 123, para 1 TFEU cannot be inferred from the ECB's announcement of a program, which has never been implemented. In any case, there is clearly no manifest and grave transgression of EU competences which, according to the German Federal Constitutional Court's (FCC)Honeywelldoctrine, is required for an ultra vires finding. The second part of this note shows that the FCC's doctrine regarding transgressions of competences by EU organs (ultra vires review) is not only unconvincing as a matter of principle but also and worse (as on premises we can always reasonably disagree) not consistently applied to the OMT program. The note also objects to the Court's somewhat trendy blending of ultra vires and constitutional identity review of EU law through which it increasingly conceals its approach of applying the so-called constitutional constraints of European integration to the EU organs' conduct. The forthcoming FCC judgment is therefore less important as regards the quite foreseeable finding on the lawfulness of the OMT program but – hopefully – of vital importance as it might embody a more coherent relaunch of the FCC's standards of judicial review with regard to EU law.The judgment of the Court of Justice of the European Union (CJEU) on the European Central Bank's (ECB) 2012 announcement of future Outright Monetary Transactions (OMT) comes as no surprise. It had not been expected that the CJEU would interpret the European Economic and Monetary Union's (EMU) Treaty provisions the way the FCC had “suggested.” Neither had it seemed conceivable that the CJEU would reject the FCC's request for a preliminary ruling holding that a legally non-binding assessment of the EU action's lawfulness could not be requested under Article 267 TFEU. The judgment had nevertheless been awaited for with tension for two reasons: First, in the vigorous and in part very critical debate about the ECB's competences under the TFEU and its alleged ultra vires action a judgment by the CJEU was necessary to settle the fundamental European law issues at stake. This is all the more important with regard to the ECB's current Expanded Asset Purchase Program (EAPP) as well as its interconnection with the European Stability Mechanism's (ESM) financial assistance programs. The CJEU's holdings on the ECB's competences within the EMU framework are discussed in the first part of this note regarding the distinction between monetary and economic policy (infra section A.I.) and the interpretation of Article 123, paragraph 1 TFEU which prohibits monetary financing of the member States by the ECB (infra section A.II.). Second, it was clear that the judgment would shape the new stage in the changing and sometimes explosive on-off relationship between the CJEU and the FCC, the stage entered into by Karlsruhe's first ever request for a preliminary ruling. The FCC had fortified its ultra vires doctrine and clearly indicated its readiness not to follow the CJEU but to insist on the notorious “last word” of the German Constitution instead. Thus, the second part of this note discusses the constitutional legal premises of the FCC's approach and the procedural and substantial manner in which the FCC tries to scrutinize the ECB's OMT program (infra sections B.I. and B.II.). In this context, possible scenarios for the upcoming judgment (infra section C.I.) and consequences for European multi-level constitutionalism (infra section C.II.) will be discussed.
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Jaffey, Peter. "Contractual obligations of the company in general meeting." Legal Studies 16, no. 1 (March 1996): 27–50. http://dx.doi.org/10.1111/j.1748-121x.1996.tb00398.x.
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In company law usually the difficulties in determining whether a putative contractual obligation is binding on the company are matters of agency. The issue is whether the person who purported to commit the company to the contract had the requisite authority under the common law rules of agency as modified for companies by statute. At one time it was necessary also to consider whether the contract was beyond the capacity of the company under the ultra vires doctrine, which limited the capacity of the company to the range of business activities defined in the objects clause of its memorandum. Now, following the Companies Act 1989, the capacity of the company is no longer limited in this way to a certain range of activities.
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Harun, Harsya. "PENYELENGGARAAN URUSAN PEMERINTAHAN DAERAH STUDI PENYELENGGARAAN URUSAN BIDANG PENDIDIKAN MENENGAH DI KOTA PALOPO PROVINSI SULAWESI SELATAN." DIALEKTIKA : Jurnal Ekonomi dan Ilmu Sosial 3, no. 1 (May 15, 2018): 33–54. http://dx.doi.org/10.36636/dialektika.v3i1.81.
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Penyelenggaraan kewenangan pemerintah daerah telah bergeser ke arah prinsip ultra vires doctrine yang nampak pada perumusan kewenangan pemerintah daerah menjadi urusan pemerintah daerah, dan pembagian kewenangan pemerintah pusat dan daerah mengedepankan prinsip yang kongkuren.Kondisi ini ditandai dengan penyelenggaraan urusan pendidikan yang terbagi antara pemerintah kabupaten/kota dengan pemerintah provinsi, dimana untuk pendidikan dasar diselenggarakan oleh pemerintah kabupaten/kota sedang pendidikan menengah dikelola oleh pemerintah provinsi.
Penelitian ini dilakukan dengan pendekatan motode kualitatif melalui observasi dan kajian pustaka. Hasil dari penelitian ini menunjukkan penyelenggaraan urusan pendidikan menengah yang dialihkan kepada pemerintah provinsi akan menimbulkan sejumlah kecenderungan baru dalam pengelolaannya baik pada pemerintah daerah maupun pada pemerintah provinsi. Pertama, bahwa kebijakan – kebijakan yang selama ini dikeluarkan oleh pemerintah daerah terkait bidang pendidikan tidak seluruhnya akan diakomodir oleh pemerintah provinsi. Kedua, kecenderungan pada meningkatnya alokasi anggaran pada pemerintah provinsi sebagai ekses pengalihan kewenangan tersebut. Ketiga, proses evaluasi, pengawasan dan pengendalian penyelenggaraan pendidikan menengah oleh pemerintah provinsi yang akan semakin berat dilihat dari sisi letak geografis wilayah, dan keempat kekhawatiran akan kurang terakomodirnya muatan kearifan lokal dalam penerapan kurikulum, dimana sebelumnya setiap kabupaten/kota tentunya memiliki karakteristik budaya yang berbeda sebagai bentuk kearifan lokal yang dapat menjadi penguat dalam penyusunan kurikulum pendidikan.
Key Words : Penyelenggaraan Urusan Pemerintahan, Pendidikan Menengah
Abstract
Implementation of local government authority has shifted towards the principle of ultra vires doctrine which appears on the formulation of local government authority to the affairs of local government, and the division of central and local government authority put forward the principle of kongkuren. This condition is characterized by the implementation of educational affairs divided between district / municipal governments and provincial governments, where basic education is administered by district / municipal governments while high school is managed by the provincial government.
This research was conducted with qualitative motive approach through observation and literature review. The results of this study indicate that the implementation of secondary education affairs transferred to the provincial government will lead to new trends in the management of both local government and provincial governments. First, that the policies that have been issued by local governments related to the education sector will not be entirely accommodated by the provincial government. Second, the tendency to increase budget allocation to the provincial government as an excess of the transfer of authority. Third, the process of evaluation, supervision and control of the implementation of high school by the provincial government will be more severe in terms of geographical location of the region, and the four concerns will be less accommodated local wisdom content in the application of the curriculum, where previously each district government / different as a form of local wisdom that can be a reinforcement in the preparation of educational curriculum.
Key Words :Implementation of Government Affairs, High School
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Bröhmer, Jürgen. "Economic Constitutionalism in the EU and Germany – The German Constitutional Court, the European Court of Justice and the European Central Bank between Law and Politics." Law and Development Review 12, no. 3 (October 25, 2019): 761–95. http://dx.doi.org/10.1515/ldr-2019-0043.
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Abstract The relationship between the European Union (EU) and its member states has recently been the subject of several legal proceedings in the German Federal Constitutional Court (GFCC) and the European Court of Justice. The backdrop to the underlying controversies were policies instituted by the European Central Bank (ECB) dealing with the economic and monetary situation in various member states in the context of the sovereign debt crises to influence interest rates, combat deflationary tendencies and keep inflation under but close to the ECB’s 2% inflation target. Especially so-called outright monetary transactions (OMTs) and the corresponding OMT-program and a particular high volume public sector asset purchasing program (PSPP) announced by the ECB have been controversially discussed. Legally, the controversies are about the prohibition for the ECB to finance debt held by the EU or member states (Article 123 TFEU) and about the delineation of economic policy (Article 119 et seq. TFEU), which lies in the hands of the members states, and monetary policy (Article 127 et seq. TFEU), which is exclusively in the hands of the ECB. The GFCC in its decisions propagated a restrictive approach emphasizing the role of the member states and pointing to the doctrines developed by it around ultra vires acts and so-called identity review. This paper attempts to shed some light on this controversy and argues that beyond the legal controversy lies a deeper problem of the relationship between judicial and political decision-making that the GFCC should exercise restraint in exercising its functions and remember its own doctrine of “open constitutional norms” developed in a different context but applicable here as well.
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Harpum, Charles. "Overreaching, Trustees' Powers and the Reform of the 1925 Legislation." Cambridge Law Journal 49, no. 2 (July 1990): 277–333. http://dx.doi.org/10.1017/s0008197300117040.
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Overreaching, as the doctrine is now understood, is the process whereby a purchaser of property takes it free from any interests or powers, which attach instead to the proceeds of sale. Dispositions of trust property and conveyances by mortgagees, by personal representatives and under an order of the court may all overreach equitable interests. A lease granted by a mortgagor may overreach the rights of the mortgagee. This article is concerned primarily with dispositions of trust property and in particular those by trustees for sale of land. It seeks to demonstrate that the concept of overreaching is wider than is supposed. Two principal arguments are advanced. The first is that overreaching is a necessary concomitant of a power of disposition. A transaction made by a person within the dispositive powers conferred upon him will overreach equitable interests in that property, but ultra vires dispositions will not, and the transferee with notice will take the property subject to those interests. The second argument is that the draftsman of the 1925 property legislation fully appreciated the true nature of overreaching, and attempted to employ it as an essential part of his scheme for the facilitation of conveyancing. His intentions have not been appreciated in practice, and his carefully constructed scheme has been misapplied. The article considers critically recent proposals for reform from the Law Commission, and in particular the emphasis which those proposals give to the protection of the rights of persons in actual occupation. It will be suggested that reform might be more effectively achieved by employing the essentials of the scheme constructed by the draftsman of the 1925 legislation.
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Wendel, Mattias. "Paradoxes of Ultra-Vires Review: A Critical Review of the PSPP Decision and Its Initial Reception." German Law Journal 21, no. 5 (July 2020): 979–94. http://dx.doi.org/10.1017/glj.2020.62.
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AbstractThis contribution explores paradoxes of ultra vires review with specific regard to the PSPP decision of the German Federal Constitutional Court in the light of the decision’s initial reception. While some of these paradoxes are inherent in the very nature of ultra vires review, others are specific to the PSPP judgment. They relate to the underlying doctrinal and theoretical premises, to key concepts such as proportionality or the scope of judicial review, to the overall context in which the decision is embedded, and even to the community which is addressed and affected by the decision. It is the sad irony that the Federal Constitutional Court, while accusing others of manifestly exceeding their competences, does not sufficiently adhere to its own standards and increasingly risks overstretching the boundaries of its mandate under the Basic Law.
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Kos, Marjan. "The PSPP Judgment of the Bundesverfassungsgericht and the Slovenian Constitutional System." Central European Journal of Comparative Law 2, no. 1 (May 14, 2021): 93–118. http://dx.doi.org/10.47078/2021.1.93-118.
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The BVerfG’s judgment on the PSPP marks another important part of the EU constitutional mosaic. It was the first time that the court declared an EU act ultra vires. Intense academic commentary ensued, mostly adopting a critical attitude towards the judgment. However, a summary rejection of the underlying idea of an exceptional national constitutional review of EU acts does not seem warranted. Unconditional primacy has been disputed by different national courts for some time now, and on two occasions, national apex courts already declared EU acts ultra vires. Considering its inherent diversity, the EU should be able to accommodate legitimate national constitutional concerns. A common frame of reference, possibly provided by Art. 4(2) TEU, could facilitate such accommodation if very high standards of violation were adopted by national courts, which would also respect the principle of loyal cooperation. In this regard, EU law also marks red lines when it comes to its fundamental principles, limiting the possibility of abuse. The Slovenian Constitution introduces EU law through Art. 3a, adopted for the purpose of accession to the EU. The Slovenian Constitutional Court's case law is generally very EU-friendly, and it could be marked by cooperative vagueness, echoing the doctrines of the CJEU. A clear answer regarding the relationship between national (constitutional) law and EU law is lacking in its jurisprudence. The court explicitly left the question of absolute primacy open. The substantive preconditions for the transfer of sovereign rights in Art. 3a, namely, respect for human rights and fundamental freedoms, democracy, and the principles of the rule of law, have been interpreted in different ways in academia. However, considering the inalienable right to self-determination, in exceptional cases of serious encroachment on fundamental constitutional values, the SCC would probably adopt its version of the BVerfG’s doctrines.
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Thym, Daniel. "Friendly Takeover, or: the Power of the ‘First Word’. The German Constitutional Court Embraces the Charter of Fundamental Rights as a Standard of Domestic Judicial Review." European Constitutional Law Review 16, no. 2 (June 2020): 187–212. http://dx.doi.org/10.1017/s1574019620000127.
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Five decades of interaction between the Bundesverfassungsgericht and the Court of Justice – Reversal of the Solange decisions – Jurisdictional upgrade of the Charter under domestic constitutional law – Continuity of the ultra vires and constitutional identity caveats – Differences between the First and Second Senate in the approach towards EU law – Preliminary references as a new normality – Projection of the experience and doctrinal rigour of the German fundamental rights case law on the European level – ‘Primary’ application of the Grundgesetz as pragmatic guidance – Gradual evolution of overarching standards – Ordinary courts as an institutional counterbalance to the Bundesverfassungsgericht – Insistence on leeway for relative national autonomy in the interpretation and application of the Charter.
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Corti Varela, Justo. "El Public Sector Purchase Programme (PSPP) a la luz de las jurisprudencias del TJUE y del Tribunal Constitucional Federal Alemán: Antecedentes y consecuencias de la sentencia del BVerfG de 5 de mayo de 2020 (2 BvR 859/15)." Revista de Derecho Comunitario Europeo, no. 68 (April 28, 2021): 67–112. http://dx.doi.org/10.18042/cepc/rdce.68.03.
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La sentencia del 5 de mayo de 2020 del Tribunal Constitucional Federal Alemán (BVerfG) que declara ultra vires al Public Sector Purchase Programme (PSPP) del BCE, y a la sentencia Weiss del TJUE que lo había validado, constituye un punto de inflexión en el llamado «diálogo» entre ambos tribunales. Las discrepancias en torno al alcance del mandato del BCE (art. 127 TFUE), y en particular a cómo aplicarle el principio de proporcionalidad en las decisiones de política monetaria, sumado a diferentes criterios de independencia y accountability sobre las llamadas decisiones con efectos económicos indirectos, llevaron al BVerfG a declarar que la actuación de la UE había excedido las competencias transferidas de un modo «estructuralmente significativo». Con un ojo puesto en el Pandemic Emergency Purchase Programme (PEPP) acepta, aunque con reparos, los requisitos que sobre el PSPP se imponen para evitar la financiación monetaria prohibida por el art. 123 TFUE. Como la sentencia no ha tenido efectos prácticos inmediatos sobre el PSPP, el daño al principio de primacía no sería suficiente como para iniciar un procedimiento de incumplimiento. Este artículo analiza la doctrina ultra vires del BVerfG (II), la influencia monetarista en el diseño del BCE (III), cómo entiende el TJUE el control sobre su mandato (IV) y sus diferencias con el BVerfG (V), la afectación al principio de primacía (VI), y cierra con unas conclusiones con las posibles contribuciones de este «diálogo» para la mejora de la legitimación democrática de la política monetaria.
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Sardaryan, H. T. "The COVID-19 Pandemic in the Social Teaching of the Roman Catholic Church." MGIMO Review of International Relations 14, no. 3 (June 27, 2021): 7–22. http://dx.doi.org/10.24833/2071-8160-2021-3-78-7-22.
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The COVID-19 pandemic exposed the critical problems of the structure not only of the modern health system but also of the role of the state in managing socio-economic processes, government institutions, and their ability to ensure the safety and well-being of the population in conditions of the practical economic shutdown, self-isolation of citizens and ultra-high mobilization of state administrative resources to ensure a full-scale fight against the spread of the virus. Inherent human rights and freedoms were limited to effectively counter the coronavirus, which would have been difficult to imagine even a few months before the pandemic outbreak. Arguments about the gradual decline of the role of the state in the organization of the management of socio-economic processes against the background of the strengthening of civil society institutions also lost their significance, as only the state was able to organize a centralized mobilization of resources to counter the mass threat to public health. These questions lead to a revision of the traditional axiology of Western society, based on the primacy of individualism and the atomization of society – approaches that the Roman Catholic Church has traditionally opposed, which in its doctrine is based on the concept of the common good. As the world's largest confession, Catholicism retains its influence over a wide range of people in many of the leading countries of the modern West. The church's social doctrine is traditionally perceived, both by Catholics themselves and by various associations of citizens, as an ethical basis for organizing the life of society. The paper analyzes the development of the social doctrine of the Catholic Church after the outbreak of the pandemic in the context of both its perception of the coronavirus itself and the necessary measures to combat it and its position on the post-ovoid structure of the world. The Papal encyclicals, messages, and speeches, which reflect the official position of the Vatican, are of crucial importance. As a possible way to overcome the crisis, the Vatican offers the classic principles for the social teaching of the Catholic Church-solidarity and subsidiarity, which require, on the one hand, the subjectivity of society and the decentralization of power.
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Feichtner, Isabel. "The German Constitutional Court’s PSPP Judgment: Impediment and Impetus for the Democratization of Europe." German Law Journal 21, no. 5 (July 2020): 1090–103. http://dx.doi.org/10.1017/glj.2020.60.
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AbstractThe article explores the understandings of democracy underlying the judgment and its implications for the democratization of Europe. I read the judgement, critically, as impediment and, constructively, as impetus for the democratization of money and society. Firstly, I recount how the Federal Constitutional Court (FCC) through the construction of a “right to democracy” and the concepts of “ultra vires act” and “integration responsibility” asserted its jurisdiction over the limits of European integration. The court’s reasoning prompts me to understand the judgment not as a defense of democracy, but rather as an instance of upholding a “rule of law” that impedes the democratization of society. Secondly, I turn to the pronouncements on the demarcation of monetary from economic competences by the Court of Justice of the European Union (CJEU) and the FCC. I explain what I hold to be the weaknesses in the FCC’s critique of the CJEU from a doctrinal perspective. I then propose to read the PSPP judgment constructively as introducing a procedural requirement that may democratize monetary policy. Thirdly, I situate my reading of the judgment in the larger debate on the democratization of society and, more specifically, money.
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Suharno, Suharno, Amir Junaidi, and Muhammad Aziz Zaelani. "Embodying The Meaning Of The Guardian Of The Constitution In The Role Of The Constitutional Court Of Reducing Constitutions Indicated By Policy Corruption." International Journal of Educational Research & Social Sciences 2, no. 3 (June 29, 2021): 592–99. http://dx.doi.org/10.51601/ijersc.v2i3.88.
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Purpose of this study was to answer two problems: (i) how is the guardian of the constitution embodied through the function of the Constitutional Court; and (ii) how the Constitutional Court as the guardian of the constitution reduces constitutions that are indicated by the policy corruption. Policy corruption is an invisible and covert element that able to threaten the synergy of the legal system and the public interest. The form of policy corruption is realized in the form of a law. Efforts that can be made to reduce the policy corruption are to implement the tight control over the media, which in this case is relevant to the function of the Constitutional Court. This studywas classified as doctrinal research with primary and secondary legal materials. Comparative approach and case approach were used to answer the legal issues. The results showed that: First, the guardian of the constitution through the function of the Constitutional Court through the optimization of the Constitutional Court Judges as the agent of constitution, strengthening the execution of the Constitutional Court decisions and collaborative steps with other state institutions in enforcing the constitutional guardianship. Second, the Constitutional Court as the guardian of the constitution in reducing laws indicated by the policy corruption is manifested in the form of a Constitutional Court decision that can be retroactive to recover the impact of legal losses that are indicated by the policy corruption, the decision of Constitutional Courtis justified by ultra vires to anticipate the chain of constitutions that indications of policy corruption, the decision of Constitutional Courtis strengthened in terms of its execution and the Court can examine or test the Constitution Drafting (bill/ RUU) (a priori review) as a preventive measure to prevent the enactment of laws that indicate policy corruption.
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Ibrahim, Johnny. "DOKTRIN ULTRA VIRES DAN KONSEKUENSI PENERAPANNYA TERHADAP BADAN HUKUM PRIVAT." Jurnal Dinamika Hukum 11, no. 2 (May 31, 2011). http://dx.doi.org/10.20884/1.jdh.2011.11.2.184.
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An acts is ultra vires when corporation is without authority to perform it under any circumstance or for any purpose beyond the scope of the powers of corporation, as defined by its charter or by law of incorporation. Some countries restrict the application of the doctrine of ultra vires but do not abolish it. Indonesia adopt doctrine of ultra vires in some of its law such as Law No. 40 of 2007 concerning Limited Liability Company and Law No. 25 of 2003 concerning Anti Money Laundering. The provisions of ultra vires doctrine has impact to other legal person than Limited Liability Company. Key words: ultra vires, extra vires, intra vires
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Egert, G. E. "THE DOCTRINE OF ULTRA VIRES: RECENT DEVELOPMENTS." QUT Law Review 2, no. 2 (December 1, 1986). http://dx.doi.org/10.5204/qutlr.v2i2.260.
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Noboa Velasco, Paúl. "La Doctrina Ultra Vires en el Contexto Societario Ecuatoriano (The Ultra Vires Doctrine and its Regulation in Ecuador)." SSRN Electronic Journal, 2020. http://dx.doi.org/10.2139/ssrn.3587514.
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Vaidya, Nidhi, and Raghvendra Singh Raghuvanshi. "Applicability of Doctrine of Ultra Vires on Companies." SSRN Electronic Journal, 2010. http://dx.doi.org/10.2139/ssrn.1558971.
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Nyombi, Chrispas. "The Demise of the Ultra Vires Doctrine in Company Law." SSRN Electronic Journal, 2011. http://dx.doi.org/10.2139/ssrn.2066953.
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Šlosarčík, Ivo. "EU Law in the Czech Republic: From ultra vires of the Czech Government to ultra vires of the EU Court?" ICL Journal 9, no. 3 (January 1, 2015). http://dx.doi.org/10.1515/icl-2015-0306.
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AbstractBefore the Czech Republic joined the European Union in 2004, its constitution has been amended with objective to guarantee constitutional conformity of the EU accession. The Czech legal system has been opened to external legal provisions and a constitutional mechanism has been established for transfer of competencies to an external entity, all framed by the explicitly formulated constitutional principle of loyalty to the international obligations of the Czech Republic. However, the ‘European amendment’ of the Czech Constitution has left several important issues unanswered, such as the principle of supremacy of the EU law or relations between the Czech Constitutional Court and the Court of Justice of the EU.This article analyses how the Czech Constitutional Court tackled with EU-related constitutional issues that emerged during the first decade of Czech membership in the EU. Focused on four key cases decided by the Czech Constitutional Court (sugar quotas, European Arrest Warrant, Lisbon Treaty, Slovak Pensions), the article will demonstrate how the Czech Constitutional Court combined a conservative and pragmatic approach in its EU law related case-law by formulating a constitutional doctrine of a ‘EU-friendly’ interpretation of Czech constitutional rules, while, at the same time, leaving the EU law formally outside the frontiers of Czech constitutional law and refusing EU law to be used as the ultimate argument in intra-judiciary disputes in the Czech Republic.
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Gilani, Syed Raza Shah. "The 'Doctrine of Ultra Vires' and its Subsequent Development in the Frame Work of Company Law." SSRN Electronic Journal, 2011. http://dx.doi.org/10.2139/ssrn.1936728.
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Akbar, Muhammad Gary Gagarin. "BUSINESS JUDGEMENT RULE SEBAGAI PERLINDUNGAN HUKUM BAGI DIREKSI PERSEROAN DALAM MELAKUKAN TRANSAKSI BISNIS." Justisi Jurnal Ilmu Hukum 1, no. 1 (November 7, 2016). http://dx.doi.org/10.36805/jjih.v1i1.77.
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ABSTRAK
Direksi mempunyai peran yang sangat vital bagi perseroan. Direksi ibarat nyawa bagi perseroan, tidak mungkin suatu perseroan tanpa adanya direksi. Direksi bertugas sebagai perwakilan perseroan dalam menjalankan perseroan. Dalam prakteknya, direksi sering kali dirugikan akibat keputusan bisnis yang diambilnya. Hal ini diakibatkan oleh belum adanya harmonisasi undang-undang mengenai definisi keuangan negara sehingga memungkinkan direksi dikenakan tindak pidana korupsi jika direksi dalam mengambil keputusan bisnis menimbulkan kerugian bagi perseroan. Jika direksi dalam mengambil suatu keputusan tidak mendapatkan perlindungan hukum maka direksi menjadi takut untuk mengadakan transaksi bisnis. Karena itu dalam hal ini sangat dibutuhkan doktrin Business Judgement Rule sebagai perlindungan hukum bagi direksi dalam melakukan transaksi bisnis agar mereka bisa menjalankan tugasnya dengan maksimal. Selain itu, jika direksi membuat keputusan bisnis yang menimbulkan kerugian untuk perseroan dikarenakan ultra vires atau melampaui kewenangan yang telah ditentukan dalam anggaran dasar atau peraturan perundang-undangan yang berlaku, maka direksi tersebut tidak bisa dilindungi oleh doktrin Business Judgement Rule. Dalam hal direksi melakukan tindakan ultra vires, maka direksi tersebut dapat dikenakan Pasal 97 ayat (3) UUPT, pasal ini menyatakan bahwa setiap anggota direksi bertanggung jawab penuh sampai pada harta pribadi apabila direksi tersebut melakukan kesalahan atau kelalaian yang mengakibatkan perseroan mengalami kerugian, kemudian direksi BUMN juga dapat dikenakan Pasal 1365 mengenai perbuatan melawan hukum yang mengakibatkan kerugian pada orang lain, maka harus membayar ganti rugi kepada pihak yang dirugikan.
Kata Kunci: Direksi, BUMN, Business Judgement Rule
ABSTRACT
Directors have a very important role for company. Directors like soul of the company, impossible a company without directors. Directors served as representative of the company in running the company. In practice, directors are often adversely affected business decision taken. This is caused by the absence of harmonization of legislation on the definition of state finances so as to enable the directors subject to corruption if the directors in making business decisions result in losses for the company. If the directors in taking a decision not to get legal protection, the directors be afraid to conduct business transactions. Therefore in this case is necessary doctrine of Business Judgment Rule as legal protection for directors in the transaction of business so that they can carry out their duties to the fullest. In addition, if directors make business decisions causing losses to the company due to the ultra vires or beyond the authority specified in the statutes or regulations applicable law, the directors can not be protected by the doctrine of the Business Judgment Rule. In the event that the directors act ultra vires, the directors may be subject to Article 97 paragraph (3) of legislation limited liability company, this article states that each member of the board of directors fully responsible to the personal property if the directors of wrongdoing or negligence which resulted in the company at a disadvantage, then the board of directors SOE also be subject to Article 1365 of the unlawful act that caused financial losses to others, it must pay compensation to the injured party.
Keywords : Directors, State Owned Enterprises, Business Judgement Rule (BJR)
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"Company’s Corporate Legal Capacity: Problems of the Ultra Vires Rule, Modern Shift and Position of Bangladesh." Asian Journal of Social Sciences and Legal Studies, July 4, 2021, 119–27. http://dx.doi.org/10.34104/ajssls.021.01190127.
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The traditional ultra vires rule has been applied to restrict the corporate capacity of an incorporated entity. It is a ‘legal person’ that can function only within the defined objects of its constitution. Long experience of applying this rule shows that the doctrine served no positive purpose (e.g. limiting the company’s transactions to some precise line of the stated objectives in its constitution), rather it produced many unsatisfactory states of affairs and difficulties like operating as a fetter on company’s new business opportunities, risk of company’s transaction being treated as void in court’s proceedings interpreting it “outside the company’s constitution” and is unenforceable. Thus, the parties in a corporate transaction are always at risk to suffer irremediable loss if at any stage either of the parties renounces the contractual obligation. For the said and many other unsatisfactory results of the traditional ultra vires rule, many developed countries have either completely abolished it from their company law or greatly limited its applications to some statutorily defined cases only. But Bangladesh still retained the century’s old outmoded tradition, even though recently the Companies (Amendment) Act 2020 passed. In the array of the vast literature on this particular issue and a great number of legislative reform proposals in many other countries and instances of their legislative reforms, it is not understandable in the legislative policy of Bangladesh for retaining it. This article analyses the historical factors behind applying this rule, the irrationality of those considerations, and its present time irrelevance.
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Schurr, Francesco A. "Distribution of foundation assets to another foundation or trust—powers of the trustees and claims based on unjust enrichment." Trusts & Trustees, July 19, 2021. http://dx.doi.org/10.1093/tandt/ttab031.
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Abstract The article deals with fundamental questions regarding the distribution carried out by a Liechtenstein foundation to another foundation and/or trust instead of a direct distribution to the beneficiaries. In principle, this phenomenon partly falls under the concept that is labelled as ‘decanting’ within the private client law community. One of the key advantages of foundations as compared to other instruments is the high level of stability combined with very limited instruments to change the purpose as well as the beneficial interest. As with trusts, the ‘decanting’ in the field of the private foundation practice seems to be a method to adjust the set-up of the vehicle, leaving old provisions behind that might no longer be compatible with the changed circumstances of the founder’s/settlor’s family. The article deals with the different legal issues involved, such as the ultra-vires-doctrine as well as the relevant issues of unjust enrichment. Finally, the author gives guidelines for practitioners by discussing the recent developments in Liechtenstein case law.
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Singh, Gursharan. "Introduction to the New Avatar of Memorandum of Associationn and Analysis of the Doctrine of Ultra-Viress." SSRN Electronic Journal, 2014. http://dx.doi.org/10.2139/ssrn.2504364.
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Connelly, Stephen. "The Tuna Bond Scandal: The Continued Lack of Transparency in Bank-to-State Credit Facilities Agreements." Journal of International Economic Law, September 4, 2021. http://dx.doi.org/10.1093/jiel/jgab029.
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ABSTRACT The United Nations Conference on Trade and Development Principles on Promoting Responsible Sovereign Lending and Borrowing provide inter alia that creditors should ensure debt contracts are duly authorized; yet, the Mozambique Tuna Bond Scandal suggests that in the market for private bank-to-state credit facilities agreements, there is still work to do. This article presents empirical evidence suggesting growth in the amount of private bank-to-state loans and argues that this growth, combined with a lack of transparency, will lead to increasing numbers of legal disputes over want and abuse of official authority. The English law doctrines of ultra vires contracting in private international law and abuse of agent authority, usually applied in the context of corruption, are considered, and various reforms are proposed, including a transparency register and a legislative reversal of presumption of agent authority.
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Yelwa, Mansur Isa, and Najibah Mohammad Zin. "JUDICIAL REMEDIES OF DARAR IN ISLAMIC FAMILY LAW: A CRITICAL STUDY OF THE LAW AND PRACTICE IN BAUCHI STATE OF NIGERIA." UMRAN - International Journal of Islamic and Civilizational Studies (EISSN: 2289-8204) 3, no. 3 (November 16, 2016). http://dx.doi.org/10.11113/umran2016.3n3.64.
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In both substantive and procedural rules, Islamic law enshrines a comprehensive legal framework that regulates the family system for the realisation of a sustainable justice for all parties to Islamic marriage institution. The basis of the philosophy of Islamic family law is that both husband and wife shall live together harmoniously, with mutual respect in order to produce an upright ummah, bearing rights and responsibilities towards one another. The husband, conferred with the privilege as head of the family and responsible for the wife, enjoys such favour within a limited sphere, to prevent ultra vires chances and abuses. The wife, ordained to bear the duty of followership and obedience towards the husband, is protected with judicial shield from darar which implies aggressive manners and ill treatment of irresponsible husbands. This paper critically examines these crucial issues pointing its sight on the classical texts, statutory provisions and the practical dispensation relating to the effect of darar on the wife and its judicial remedies with Bauchi state of Nigeria as case study. It is based on a qualitative research that employs both doctrinal and empirical research approach. The findings of the research reveal that the application of Islamic law in the Bauchi State Sharīʿah Courts has a number of challenges questioning the consistency of its practical aspect with the theoretical aspect; namely, the classical textual provisions. Keywords: Islamic law; procedure; darar; husband; wife; Bauchi state.