Analysis Of Relevant Case Law Research Articles

Judicial Review of the Application of Ultra Vires Doctrine in Malaysia and Indonesia: A Legal Comparison

The Ultra Vires Doctrine serves as a fundamental principle in corporate law, delineating the boundaries of governmental authority and ensuring adherence to legal framework. This comparative study explores the application of the Ultra Vires Doctrine in the judicial systems of Malaysia and Indonesia. Through an analysis of relevant case law, statutory provisions, and scholarly literature, the study highlights similarities and differences in the interpretation and implementation of the doctrine across these jurisdictions. While both countries recognize the importance of restraining government action within legal limits, variations emerge in the extent to which courts intervene and the factors considered in determining ultra vires acts. By shedding light on these legal frameworks, this research contributes to a deeper understanding of corporate law principles in Malaysia and Indonesia and provides insights for legal practitioners, policymakers, and scholars seeking to navigate and strengthen the rule of law.

A Post-COVID Inflection Point and Call to Action: Theorizing a Legal Right to Youth Sport, Play, and Physical Activity in the United States

Literature links sport, play, and similar leisure endeavors to numerous physical, psychological, and social benefits critical to a young person’s development. Unlike other nations, the United States lacks a national policy to fund structures supporting youth sport, play, and the like. Instead, a for-profit youth sport industry oversees this sector using a pay-to-play model, creating significant financial and access barriers. The COVID-19 pandemic created an inflection point and call for action to meaningfully reform youth sport. Advocates often claim, without providing legal justification, that access to sport and play is a constitutional right. Therefore, the purpose of this commentary is to move beyond aspiration or hypothetical rhetoric and investigate whether a persuasive legal argument exists that places a constitutional legal responsibility upon the United States federal government to create structures, allocate funding, and provide universal access to free sport, recreation, and play opportunities for youth. While review and analysis of relevant case law found that no constitutional right likely existed under United States law, this process confirmed that that such claims will have little chance of success under current precedent. Therefore, given the improbability of substantive voluntary reforms in the private sector, a deeper exploration of innovative legal theories is required to achieve the necessary structural change.

Medical Negligence: Critical Analysis of Select Case Laws from Nepal

This study presents a critical analysis of five legal precedents established by the Supreme Court of Nepal involving medical negligence, with the aim of understanding the legal principles, challenges, and implications in such cases. The primary objective of this research is to contribute to the discourse on patient rights, doctor accountability, and healthcare quality. To achieve this, a case law study approach was adopted, involving critical analysis of relevant case law. The selected precedents were thoroughly examined to identify legal principles, judicial reasoning, and the application of laws in different contexts related to medical negligence. The key findings from the analysis of the case laws emphasize the importance of ethical conduct and professionalism in medical practice, the judiciary’s commitment to upholding justice, and the balance between patient rights and doctors’ accountability through the distinction between civil and criminal liability.

The Practice of Engagement without Recognition under International Law: A Tool for Combatting Human Trafficking

Abstract This article argues that, even in the absence of international recognition, international law can make a real and meaningful impact in de facto states. Such impact can come about through engagement without recognition, which should be understood, not as a shadowy practice that takes place in the fringes of international law, but as a strategy that is fully compatible with international legal standards. The article makes this argument by relying on a detailed analysis of relevant case law of the European Court of Human Rights. It further proposes that reconceptualizing engagement without recognition can have important practical consequences in the fight against human trafficking, which has received regrettably limited attention by policymakers in de facto states.

Potential Overcriminalization in Religious Offenses: A Critical Analysis Of The Formulation Of The New National Criminal Code (Law 1 Number 2023)

Overcriminalization in the context of criminal law refers to the phenomenon where too many behaviors are defined as criminal offenses, which ultimately results in the expansion of law enforcement powers and an increase in the number of individuals caught up in the criminal justice system. This study examines overcriminalization in the formulation of religious offenses contained in Law Number 1, the Year 2023 on the Criminal Code (KUHP), focusing on Article 302 on incitement of a person to no religion or belief adopted in Indonesia and its impact on atheists or non-religious communities. The analysis highlights several important issues, such as the unclear definition of "inciting" in the article, its impact on freedom of speech, potential discrimination against minorities, and misuse of the law for political purposes. The research was conducted using a qualitative method, combining document studies, literature reviews, and analysis of relevant case law. The results show that Article 302 of the New National Criminal Code may lead to overcriminalization, as it regulates acts that can be considered part of freedom of expression and religion. This article can also be considered as limiting the right of individuals to choose their beliefs or religion, including the right not to have religious beliefs. In addition, this research highlights that this article is vulnerable to abuse by parties who have political interests or want to target specific groups. As a recommendation, this study suggests the need to reform the formulation of Article 302 of the National Criminal Code to reduce the impact of overcriminalization and protect human rights, such as freedom of speech.

Comment ça va? The Status of French Laws in Vanuatu

Abstract Prior to Vanuatu’s independence in 1980, in the absence of applicable joint regulations, French law applied to French citizens and English law applied to British citizens. Members of the indigenous population were governed by a different regime. Subjects of other countries were required to “opt” for either the French or the English legal system within one month of arrival. At independence, French and English laws continued in force, unless revoked by the Vanuatu Parliament or incompatible with the independent status of Vanuatu. However, the opting provisions were repealed and it was not made clear when and to whom each system of law was to apply. In practice, French law is rarely applied. Commencing with a brief explanation of the sources of law in Vanuatu, this Article seeks to identify the rules for the application of French law in Vanuatu today through an analysis of relevant case law. It then goes on to explore divergence between English and French law, which might be of significance for parties to civil cases. The Article also discusses the results of empirical work carried out in Vanuatu, which sheds some light on the reasons why French law has been marginalised.

Cross‐Border Social Dumping as a ‘Game of Jurisdiction’ – Towards a Legal Geography of Labour Relations in the EU Internal Market*

AbstractThe question of social dumping has again climbed the EU policy agenda. In this article, we call into question some established views of social dumping that conceptualize the relationship between EU internal market and Member States in binary terms. Based on an analysis of relevant case law, and drawing on the conceptual tools provided by critical legal geography, we show that the project of EU integration relies as much on the scalar differentiation of powers as it does on the ‘upward’ shift of powers from the national‐ to the supra‐national level. We propose an understanding of EU internal market law as productive of a ‘labour law patchwork’, defined by the simultaneous fragmentation and overlap of labour law regulations across and within EU Member States. Here, we re‐conceptualize cross‐border social dumping as a ‘game of jurisdiction’ – a set of strategic moves by actors within a multi‐scalar and multi‐jurisdictional space.

Enforcement of Harmonization Relying on the Country of Origin Principle

The Country of Origin (COO) Principle is frequently used as the template for secondary legislation aiming at realizing the internal market. The main feature of the harmonization using this model is that the home Member State should enforce the minimum requirement agreed on for issuing the relevant authorization, licence, etc. The other Member States in which the authorization, etc., is used (the host Member States) should recognize the harmonization and should neither enforce their own conditions for issuing an authorization, etc., nor try to make a parallel enforcement of the harmonized minimum requirement. Thus, the proper compliance with this type of harmonization faces two challenges: how to ensure that the host Member State enforces the minimum requirements agreed upon and continues to ensure that these are complied with, and how to ensure that the host Member States do not take it upon themselves to enforce the same requirements. If these two challenges are not overcome, the harmonization is not likely to work as intended, and consequently both the EU legislator and the Court of Justice of the European Union have taken different steps to overcome these challenges. By focusing on a selection of different areas using the COO Principle (insurance, driving licence, road haulage transport, audiovisual media services and credit institutions) these challenges and the remedies put in place to overcome them are analysed. This includes an analysis of recent reforms undertaken in these areas as well as an analysis of relevant case law. It is shown that different approaches have been used successfully to ensure better compliance, but there also seems to be approaches that are either less functional or a ‘no go’.

The EU Directive on Combating Terrorism and the Criminalisation of Travelling

EuCLR European Criminal Law Review , Seite 201 - 222

The Role of Human Dignity in the Assessment of Fair Compensation for Unfair Dismissals

South African labour law is concerned with the attainment of fairness for both the employer and the employee. In weighing up the interests of the respective parties it is of paramount importance to ensure that a delicate balance is achieved so as to give credence to commercial reality as well as an individual's right to dignity. In other words the attainment of fairness in the employment relationship must give cognisance not only to surrounding socio-economic reality but also to human rights. The environment within which the world of work operates has at its core a free enterprise economy. Ultimately, an employer should generally not be penalised to the extent that it is crippled and unable to continue operating. It is argued in this article that in ascertaining what constitutes appropriate compensation for an unfair dismissal, the underlying reality that labour law operates in a free enterprise system must be and is given cognisance to by the legislation and the courts. At the same time in ascertaining what constitutes fair compensation for unfair dismissal due regard must be had not only to the labour rights contained in the Constitution but also to other rights protected in terms of the Constitution, most importantly, the rights to dignity and equality. The fact that the basis of the employment relationship is commercial and an employer is entitled and even encouraged to make profits is reflected in our law by the fact that there are caps on the amount of compensation for unfair dismissal in the interests of business efficiency and certainty. However, an analysis of relevant case law demonstrates that this can never be at the expense of a person's dignity. Hence the notion that the employment relationship is relational. This is reflected by the interpretation given to the legislation by the courts. Where there has been discrimination or an impairment of the employee's dignity, there are no such limits as to the amount of compensation a court can award. If there has been unfair discrimination, the courts may even award punitive and non-pecuniary damages.

“Deference as respect” in WTO standard of review

PurposeIn WTO proceedings The Dispute Settlement Body has generally adopted a standard of review that is less than deferential even in the Anti‐Dumping agreement which envisages a deferential standard of review. What should be the applicable standard of review in WTO proceedings? The purpose of this paper is to present an analysis of the concept of “deference as respect” as developed by David Dyzenhaus and discuss its application to the WTO. This paper argues that the WTO should apply a standard of “deference as respect” in the interest of preserving economic sovereignty and the legitimacy of the WTO.Design/methodology/approachThe paper involves the analysis of relevant case law and also the analysis and application of the concept of “deference as respect” in WTO proceedings. It also uses a comparative methodology in that it highlights the application of domestic legal principles at the international level.FindingsThe main finding is that within the WTO there is need to balance the requirements of trade liberalisation which eschews protectionism and the requirements of sovereignty and legitimacy. This balance can partly be achieved when a standard of review akin to “deference as respect” is applied.Originality/valueThis paper is different from previous writings on WTO standard of review in that it applies the concept of “deference as respect”. This analysis and application will provide academics and members of the DSB with a new way of assessing the standard of review in the WTO.

The Role of Human Dignity in the Assessment of Fair Compensation for Unfair Dismissals

South African labour law is concerned with the attainment of fairness for both the employer and the employee. In weighing up the interests of the respective parties it is of paramount importance to ensure that a delicate balance is achieved so as to give credence to commercial reality as well as an individual's right to dignity. In other words the attainment of fairness in the employment relationship must give cognisance not only to surrounding socio-economic reality but also to human rights. The environment within which the world of work operates has at its core a free enterprise economy. Ultimately, an employer should generally not be penalised to the extent that it is crippled and unable to continue operating. It is argued in this article that in ascertaining what constitutes appropriate compensation for an unfair dismissal, the underlying reality that labour law operates in a free enterprise system must be and is given cognisance to by the legislation and the courts. At the same time in ascertaining what constitutes fair compensation for unfair dismissal due regard must be had not only to the labour rights contained in the Constitution but also to other rights protected in terms of the Constitution, most importantly, the rightsto dignity and equality. The fact that the basis of the employment relationship is commercial and an employer is entitled and even encouraged to make profits is reflected in our law by the fact that there are caps on the amount of compensation for unfair dismissal in the interests of business efficiency and certainty. However, an analysis of relevant case law demonstrates that this can never be at the expense of a person's dignity. Hence the notion that the employment relationship is relational. This is reflected by the interpretation given to the legislation by the courts. Where there has been discrimination or an impairment of the employee's dignity, there are no such limits as to the amount of compensation a court can award. If there has been unfair discrimination, the courts may even award punitive and non-pecuniary damages.KEYWORDS: Constructive dismissal; Right to dignity; Harassment; Unfair dismissal; Compensation for unfair dismissal; Solatium; Relational contract

Discursos de ódio em redes sociais: jurisprudência brasileira

Tendo-se em vista a crescente popularização de redes de relacionamento virtual como o Orkut, a facilidade de divulgação de conteúdos prejudiciais nesses meios, e a necessidade de o Direito adaptar-se às demandas da Era da Informação, o presente artigo busca elucidar se e como o sistema judiciário brasileiro julga litígios envolvendo discursos de ódio publicados em redes sociais. De forma a cumprir esse objetivo, utilizou-se de abordagem quantitativa (coleta sistemática de dados jurisprudenciais nos sítios de tribunais, tendo por filtro a palavra "Orkut") e qualitativa (análise das jurisprudências pertinentes). Como conclusão, verificou-se que o Poder Judiciário do Brasil, embora receba poucas demandas sobre discursos intolerantes veiculados em rede virtual, posiciona-se de forma a privilegiar a dignidade das pessoas que interagem no ciberespaço.

End-User License Agreements: A New Era of Intellectual Property Control

This article analyzes the growing use of end-user license agreements in connection with the sale and licensing of patented and copyrighted products. It explores the limits and enforceability of such agreements through the analysis of relevant case law, including the decision in Lexmark v. Static Control Components. The article assesses the public policy implications of broadened enforceability of product licenses and makes recommendations for change.

The Right to Environmental Protection in India: Many a Slip between the Cup and the Lip?

India is one of the first jurisdictions to have embraced an environmental right, and ‘fostered an extensive and innovative jurisprudence’ on it. The Indian Supreme Court has held the principles of precaution, polluter pays and inter‐generational equity as well as the public trust doctrine as integral to the corpus of Indian law. There is, however, many a slip between the cup and the lip, and this article explores some of these slips in detail. It argues that the constitutionally guaranteed environmental right is poorly defined, and therefore offers little guidance in making difficult judgments central to an exercise of this right. After an analysis of relevant case law, it finds that at least some of the principles intended to guide the actualization of the environmental right do little more than create a smokescreen, which renders application and implementation difficult, and obfuscates the hard questions. It also argues that the judicial discretion available to judges in public interest environmental litigation, in combination with the proliferation of imprecise rights, allows the judiciary's preferences for certain rights and certain modes of argumentation to prevail. It concludes however that, notwithstanding these concerns, the Indian Supreme Court deserves credit for having delivered a vast number of environmentally sensitive decisions, and for its willingness to embrace innovative and progressive conceptual tools in the service of environmental protection.

Unconstitutional Review Board? Considering a First Amendment Challenge to IRB Regulation of Journalistic Research Methods

The legacy of First Amendment scholar Margaret Blanchard deeply informs this article. During the latter years of her distinguished career, problems arising from regulations imposed by institutional review boards on scholars working in her field were among her deepest concerns. In her own writing and in public comments recorded by others, Blanchard articulated those concerns passionately and repeatedly. This article considers how IRB regulations on journalistic research methods might fare if subjected to the judicial scrutiny of a First Amendment challenge. Through analysis of relevant case law, the article considers critical elements likely to be at issue. Regardless whether the plaintiff in such a challenge could in fact prevail—given the possibility that case law on conditions imposed in return for government funding could be held to apply to the regulations in question—the analysis suggests that such regulations are at odds with American free-speech traditions and values.

Linking Training and Promotion in a Police Agency

In late 1993, the Department of Criminal Justice at Georgia State University (GSU) and the Metropolitan Atlanta Rapid Transit Authority Police Department (MARTA-PD) undertook a joint effort to develop a unique system of promotion whereby officers employed by MARTA-PD could advance in rank according to their completion of performance in a specially designed training curriculum. This joint effort was designed to assist in improving overall departmental administration through providing management training and to produce individual scores that could be used for promotional selection. Utilizing a comprehensive job-task analysis, a training-based promotional program was designed and delivered to candidates for promotion. In this research effort, the MARTA training-based promotional system will be reviewed. After a comprehensive critique of traditional promotional practices and an analysis of relevant case law, a theoretical base for a training-based system will be offered. This will be followed by a brief discussion of the results of the task analysis and the construction of the training courses. An overview of the training delivery, testing and list construction will then be presented. Finally, qualitative data on the potential success and acceptance of this program is planned.