Developments In Case Law Research Articles

Генедерная дискриминация в авиационной отрасли: эффективность раздела VII

The publication is translation of paper by Denis Binder (professor of law, Chapman University), published in California Law Review in 1971. The article highlights the important legal issues related to gender discrimination in the workplace. The author analyzes the principle of bona fide professional qualification, its content, interpretation in law enforcement practice as the only legitimate exceptions established by the Civil Rights Act of 1964’s the prohibition of sex discrimination. The author analyzes a broad approach to the interpretation of the principle of bona fide occupational qualifications based on any common characteristics in general are related to gender and a narrow approach of assessing individuals based on individual qualities, not on the basis of common characteristics of the sex. The author substantiates the necessity of narrow interpretation of the principle of bona fide occupational qualifications. Also in the article was analyzed the reasoning by the courts the position of the employer when this employer conceders an additional factors such as presence of children or marital status and using of the developed approaches to disputes of the airlines with the stewardesses. In addition to the prohibition of marriage there also was the age limit for stewardesses, when many airlines were automatically dismissed them upon reaching 32—35 years without taking into account individual characteristics of women, while the age of retirement of male stewards was 65 years. According to the author the collective agreements can be very effective in resolving existing problems for stewardess restrictions, which, however, does not eliminate practices of discrimination completely. The author has argued the necessity of the case law development in order to force the airline to refuse sex discrimination at all stages of employment.

Religious Freedom and Equality as Celebration of Difference: A Significant Development in Recent South African Constitutional Case-Law

This contribution focuses on the way in which the South African Constitutional Court has, since 1997, been dealing with the (seemingly) eccentric claims of (assumedly) idiosyncratic 'religious Others'. Developments in this regard have, for the time being at least, culminated in the Constitutional Court's landmark judgment in MEC for Education: KwaZulu Natal v Pillay 2008 (2) BCLR 99 (CC), 2008 (1) SA 474 (CC)(hereafter Pillay).
 
 Constitutional Court judgments since 1997 manifesting the adjudication of such unconventional claims are assessed, eventually getting to Pillay as benchmark. This remarkable judgment, dealing with a deceptively mundane issue, has played a considerable role in fleshing out a jurisprudence of difference, putting an adherent of a vulnerable, minority religion in the right. This is not just a high point in the adjudication of constitutional entitlements of the religious (and cultural) Other in South Africa, but also a significant contribution to the growth of a jurisprudence sensitive to the predicaments and constitutional entitlements of unconventional, 'non-mainstream' claimants of religious (and cultural) rights.
 
 Finally Pillay illustrates that the constitutional guarantee of the right to freedom of religion, conscience, belief and opinion (entrenched in section 15(1) of the Constitution of Republic of South Africa 1996) can be crucially dependent upon due effect being given to the proscription of unfair discrimination on the grounds of religion, conscience, belief and opinion elsewhere (namely in section 9(3)) of the Constitution.

Non-Regression Clauses in Times of Ecological Restoration Law: Article 6(2) of the EU Habitats Directive as an unusual ally to restore Natura 2000?

Recently, the concept of ecological restoration has risen to the fore in international and regional biodiversity policies as a newly coined tool for the intentional recovery of degraded ecosystems. The EU Biodiversity Strategy to 2020 has also embraced ecological restoration and translated it into an ambitious target to restore 15% of the degraded ecosystems in the EU. Although the concrete delineation of these recent policies remains uncertain, to say the least, it is obvious that the EU Nature Directives will play a crucial role in achieving these restoration targets. In recent years, the relevance of the non-regression or standstill clause contained in Article 6(2) of the Habitats Directive – which does not seem to focus on recovery but rather on avoiding additional losses in Natura 2000 sites – to achieving these objectives has gained considerable traction. This paper argues that taking into account recent CJEU case-law developments and the lack of proper enforcement of conservation duties during the past two decades, Article 6(2) of the Habitats Directive will be a major catalyst for the implementation of more robust recovery policies, especially in cases of previous non-compliance with the conservation duties that EU Member States have regarding the Natura 2000 Network. Its legal teeth allow it to bolster recovery and remediation programmes across the EU, tackling past, interim and ongoing biodiversity losses in the context of the Natura 2000 Network, and to remove bothersome obstacles that stand in the way of further restoration.

Austrian Constitutional Court: Presidential Election – Violation of the Principle of Free Elections

Abstract One reason for the annulment of the Presidential Election was the violation of the principle of free elections enshrined in the Austrian Federal Constitutional Law (cf VfGH 1.7.2016, W I 6/2016, paras 511 ff). This can be seen as a consistent further development of former case-law by the Constitutional Court.

A Formidable Task: Reflections on obtaining legal empirical evidence on human trafficking in Canada

This article explores the experiences, challenges and findings of two empirical research studies examining Canada’s legal efforts to combat human trafficking. The authors outline the methodologies of their respective studies and reflect on some of the difficulties they faced in obtaining empirical data on human trafficking court cases and legal proceedings. Ultimately, the authors found that Canadian trafficking case law developments are in their early stages with very few convictions, despite a growing number of police-reported charges. The authors assert it is difficult to assess the efficacy and effects of Canadian anti-trafficking laws and policies due to the institutional and political limitations to collecting legal data in this highly politicised subject area. They conclude with five recommendations to increase the transparency of Canada’s public claims about its anti-trafficking enforcement efforts and call for more empirically-based law reform.

Parallel State Duties: Ninth Circuit Class Actions Premised on Violations of the FDCA Reporting Requirements

Recent Ninth Circuit decisions suggest the court's willingness to accommodate plaintiffs that bring product liability cases against manufacturers who fail to comply with the FDCA's adverse event reporting requirements. Moreover, the developments in federal case law explain that a manufacturer's reporting duties in such suits extend only to the FDA and not individual medical providers. This may create a degree of commonality among potential claimants such that class treatment under Fed. R. Civ. P. 23 is appropriate, but the Fairness in Class Action Litigation Act of 2017 threatens to make such an approach infeasible if passed by Congress.

Big Data and security policies: Towards a framework for regulating the phases of analytics and use of Big Data

Big Data analytics in national security, law enforcement and the fight against fraud have the potential to reap great benefits for states, citizens and society but require extra safeguards to protect citizens' fundamental rights. This involves a crucial shift in emphasis from regulating Big Data collection to regulating the phases of analysis and use. In order to benefit from the use of Big Data analytics in the field of security, a framework has to be developed that adds new layers of protection for fundamental rights and safeguards against erroneous and malicious use. Additional regulation is needed at the levels of analysis and use, and the oversight regime is in need of strengthening. At the level of analysis – the algorithmic heart of Big Data processes – a duty of care should be introduced that is part of an internal audit and external review procedure. Big Data projects should also be subject to a sunset clause. At the level of use, profiles and (semi-) automated decision-making should be regulated more tightly. Moreover, the responsibility of the data processing party for accuracy of analysis – and decisions taken on its basis – should be anchored in legislation. The general and security-specific oversight functions should be strengthened in terms of technological expertise, access and resources. The possibilities for judicial review should be expanded to stimulate the development of case law.

Kompetencje Unii Europejskiej a prawa własności intelektualnej. Wewnętrznie dzielone, zewnętrznie wyłączne?

EU Competence and Intellectual Property Rights. Internally Shared, Externally Exclusive? Abstract: The European Union’s competence in external relations remains widely debated whenever the conclusion of an international agreement is about to happen. The recent focus mainly concerns the EU’s planned external trade agreements which grant it exclusive competence in this area. This is particularly complex in the field of intellectual property rights, where the EU has exclusive competence only with respect to the commercial aspects of the domain. This paper examines how the notion of the commercial aspects of intellectual property is interpreted by the Court of Justice of the European Union. We also analyze the possible implications of the broad approach adopted by the Court. In this regard, we first discuss the Court’s line of argument in the Daiichi Sankyo case. Then we scrutinize and verify the interpretation applied by the Court, which is significant in order to predict future case law developments in this area. We also relate the Court’s verdict to the EU’s internal regulations which brings us to the conclusion that the approaches taken in external trade relations and within the internal market contradict each other, leading to a legal or interpretative dead-end. Although detailed and specific, the results of this analysis make it possible to understand the complexities underlying the political turbulences that often occur when the EU negotiates international trade treaties.

Italy Innovates Tax Consolidation Regime in Line with ECJ Case Law Developments

This contribution describes article 6 of Legislative Decree No. 147 of 14 September 2015, which widens the scope of tax consolidation opportunities for non-resident entities.

The 'Huawei v. ZTE' Judgement and Follow-On Application of Article 102 TFEU in the Light of this Judgement by German Courts

This paper discusses a judgement of the Court of Justice in re Huawei v. ZTE rendered on 16 July 2015 providing binding interpretation of Article 102 TFEU. This judgement concerns an abuse of dominant position by bringing an action for injunctive relief and/or the recall of goods from distribution by an owner of a standard essential patent who made prior FRAND commitment. Many controversies in the ICT industry as well as in Academia appeared on how to approach the interpretation of this groundbreaking judgement. The author suggests interpretation capturing a broad spectre of anti-competitive effects and thus make the best use of this judgement in the interest of prevention of stakeholders' opportunistic behaviour. A key part of this paper is formed by an analysis of German follow-on case-law applying Article 102 TFEU in the light of the Huawei v. ZTE judgement. The author concludes, inter alia, that German courts´ assessment of an abuse of dominant position is strongly focused on application of the so-called Huawei steps. For the future, the author advices to base the decisions more on persuasive theory of harm and support them by evidence of (potential) anti-competitive effects. As for the practical implications of the German follow-on case-law, one may observe a shift from the previous case-law based on the Orange Book Standard decision in some aspects. Since Germany is an important patent litigation destination, stakeholders from the ICT industry will attentively follow the development of FRAND-related case-law originating from German courts and possibly adapt their behaviour accordingly.

Bringing Occupation into the 21st Century: The effective implementation of occupation by proxy

This article examines the law of occupation by proxy which was identified by the International Criminal Tribunal for the Former Yugoslavia in the Tadić case. In particular, this article reviews the necessary nature of occupation by proxy, the case law development of the concept and then its substantive content. The article next uses Eastern Ukraine as a practical example of a possible occupation by proxy situation. Lastly, the effectiveness of the concept is analysed to see if it could be applied in a conflict today and how the concept could be development and brought to the forefront of international humanitarian law.

Religious Freedom of Members of Old and New Minorities: A Double Comparison

Confronted with cases of restrictions of the right to manifest religious beliefs of new religious minorities formed by recent migration movements, the ECtHR and the UNHRC seem to opt for different interpretations and applications of this right, as recent conflicting decisions show. Based on an empirical legal analysis of the two bodies’ decisions on individual complaints, this article finds that these conflicting decisions are part of a broader divergence: While the UNHRC functions as a protector of new minorities against States’ undue interference in their right to manifest their religion, the ECtHR leaves it up to States how to deal with religious diversity brought by new minorities. In addition, a quantitative analysis of the relevant case law showed that the ECtHR is much less likely to find a violation of the right to freedom of religion in cases brought by new religious minorities as opposed to old religious minorities. Although this could be a hint towards double standards, a closer look at the examined case law reveals that the numerical differences can be explained by the ECtHR’s weaker protection of religious manifestations in the public as opposed to the private sphere. Yet, this rule has an important exception: Conscientious objection to military service. By examining the development of the relevant case law, this article shows that this exception bases on a recent alteration of jurisprudence by the ECtHR and that there are similar prospects for change regarding other religious manifestations in the public sphere.

Adjudicating International Environmental Law Litigation: Recent Development of Case Law

This article revolves around distinct dimensions related to the international environmental legal framework. In the recent years, there have been various developments in the field of international environmental law. Some of the inter-state disputes have raised concern towards resolving environmental issues. There are three well-known cases properly discussed in this article, i.e. Indus Waters Kishenganga, South China Sea and Pulp Mills case. In all of these three cases, a new jurisdiction has been proclaimed giving a new side to the international environmental litigation. For instance, ICJ’s judgement introduced the need for inclusion of EIA in the Pulp Mills case. On the contrary, the Partial Award in the case of Indus Waters Kishenganga, extended rights of India over Indus River but restricted the State from conducting extensive operations. The South China Sea case prohibited China from exercising historic rights over resources which belong to the nine dash line.

The Right to Same-Sex Marriage: Assessing the European Court of Human Rights’ Consensus-Based Analysis in Recent Judgments Concerning Equal Marriage Rights

This contribution assesses the consensus-based analysis and reasoning of the European Court of Human Rights in recent judgments concerning equal marriage rights and compares it to the Court’s past jurisprudence on European consensus and the margin of appreciation awarded to Member States regarding the issue of equal marriage rights. The contribution aims to analyse whether there is a parallel to be seen between the rapid global trend of legalisation of same-sex marriage and the development or evolution of the case law of the ECtHR on the same topic. Furthermore, it demonstrates that the Court’s consensus-based analysis is problematic for several reasons and provides possible alternative approaches to the balancing of the Court between, on the one hand, protecting rights of minorities (in this case samesex couples invoking equal marriage rights) under the European Convention on Human Rights and, on the other hand, maintaining its credibility, authority and legitimacy towards Member States that might disapprove of the evolving case law in the context of same-sex relationships. It also offers insights as to the future of European consensus in the context of equal marriage rights and ends with some concluding remarks.

Transnational Insolvency 201: an Updated Guide to Cross-Border Bankruptcy Proceedings

Chapter 15 of the United States Code addresses “Ancillary and Other Cross-Border Cases.” It is complex body of law designed to facilitate cooperation between the United States and foreign countries in transnational insolvency cases. Cross-border insolvencies do not exist in a vacuum; Chapter 15 requires many courts and systems to work together and respect each country’s statutory law and common law. This article explains Chapter 15’s purpose, “terms of art,” implementation, and practical realities. U.S. courts have interpreted the law consistently and consonant with Congressional intent of promoting comity and international cooperation in transnational insolvencies. Even so, eleven years after its passage by the U.S. Congress, Chapter 15 has proven to be complicated and somewhat controversial. Case law development continues to shape application of Chapter 15, and this article addresses Chapter 15 disputes such as a debtor’s COMI, standards for eligibility when interpreting 15 U.S.C. § 109(a), and guidance for foreign representatives seeking recognition under Chapter 15.

El desarrollo jurisprudencial del derecho Fundamental al agua potable el caso el municipio de socorro santander

El presente artículo realiza un acercamiento exploratorio al concepto, alcance y componentes de las garantías constitucionales que dispone el ejercicio del derecho al agua potable, en un contexto del derecho Nacional, a fin de analizar las características especiales y jurídicas que desarrolla, el objeto y su consagración como un derecho fundamental y su evolución jurisprudencial. El derecho al agua potable es considerado como una garantía que permite la satisfacción de derechos inherentes al ser humano, tales como la vida, la salud y la dignidad humana, por ende, que su satisfacción implique una obligación a cargo del Estado quien ha soportado sus bases sobre un modelo social y de Derecho, por ello, que el estudio del tema central de este articulo genere gran importancia e implique la posibilidad de conceptualizar en torno a este derecho al que debe imprimírsele un contenido superior pues implica la posibilidad de que sea garantizado no solo en la inmediatez sino a las generaciones futuras, un postulado que cobra fuerza cuando se habla de los derechos de las generaciones por nacer, por ende que no se habla de un simple derecho sino de una necesidad para vivir. Por lo anterior, dilucidar el caso de un Municipio como el Socorro Santander en torno a los problemas que se presentan para la satisfacción del derecho al agua, implica determinar las falencias que desde la estructura municipal se han generado y que han condicionado el acceso al agua potable, para la población, aun cuando se trata de un problema que no ha sido fundamentado inicialmente en la asignación de los recursos, por ello que es la posibilidad de abundar en la problemática que rodea al país y es la no garantía del derecho al agua para todos, tal y como se ha consignado en la legislación y otras disposiciones normativas que fundamentan el cumplimiento de los fines esenciales del Estado.

Untrustworthy: ERISA's Eroded Fiduciary Law

The trust law analogy has come to dominate judicial thinking about employee benefit plans. Yet despite its rise to rhetorical prominence, ERISA fiduciary law has been dramatically transformed by a series of uncoordinated low-visibility judicial decisions on multiple fronts. These apparently unconnected case law developments reveal a startling pattern of mutually reinforcing restrictions on ERISA’s protection of pension and welfare benefits. This study makes the case that both the scope and the intensity of fiduciary oversight have been radically pruned back in the courts. Notwithstanding the congressional declaration that attempts to relax workers’ federal fiduciary protections “shall be void as against public policy”, the U.S. Supreme Court has shown the way to curtail fiduciary obligations. That de facto or implicit exculpation, combined with unilateral employer control over both plan terms and plan interpretation, indicate that the federal courts have defanged — or deranged — ERISA’s fiduciary regime. In the course of chronicling ERISA’s trust law turn and exposing how untrustworthy workers’ fiduciary defenses have become, the article explains, contrasts, extends, and ultimately reconciles the two premier scholarly analyses of ERISA’s fiduciary regime: Daniel Fischel & John H. Langbein, ERISA’s Fundamental Contradiction: The Exclusive Benefit Rule, 55 U. Chi. L. Rev. 1105 (1988); and Dana Muir & Norman Stein, Two Hats, One Head, No Heart: The Anatomy of the ERISA Settlor/Fiduciary Distinction, 93 N.C. L. Rev. 459 (2015).

The Electronic Commerce Bill and the Integrative Adaptation Model of E-Commerce Regulation and Taxation

Two important developments have recently taken place in Israeli laws regarding the Internet. The first is of a legislative character, regarding the Electronic Commerce Bill of 2008 that seeks to regularize certain aspects of the civil law with regards to the electronic world; the second development regards the ruling in the case of Rami Mor (CCA 4447/07 Rami Mor v Barak ITC (1995) HaHevra LeSheruity Bezeq Beinleiumiim (Mar. 25, 2010)), whose majority opinion could be considered to grant a complete and total defense to the anonymity of the internet user and her freedom of expression, and granted complete immunity to a potential offender who sullies another's reputation. In the following I shall criticality discuss issues arising from these developments. It is my position that both the Israeli regulator and Supreme Court have failed to fulfill their respective duties with regards to the development of regulations and settling disputes arising from internet law. This creates a gap between the law as it stands today and the modernity of life on the internet, which indicates the Israeli legal system is significantly lagging behind in comparison to more advanced legal systems, and poses a challenge to certain fundamental rights. I will base myself upon the two aforementioned developments to outline the theoretical basis for Internet regulation and propose a separation of powers model between the legislature and the judiciary. The thesis proposed is one which maintains the imposition of legal regulations on the Internet should be done by the integrative measures of new legislation and case-law development drawing upon other branches of law in search for applicable and existing judicial doctrines. I implement the thesis proposed in this article on the Electronic Commerce Bill, and propose a classification and outline for each of the issues that it arouses. I further apply the thesis extensively with regards to the taxation of electronic commerce and an integrative model for national and international taxation of electronic commerce. The model proposes a four-prong approach to taxation: First, it considers the development of residence and classification of income rules by case law; Second, it revisits the need for a revision of classification of legislative income rules; Third, it explores the use of technology to ensure enforcement of tax law and Fourth, it discusses the need for securing an international consensus and convention of a treaty.

Command Responsibility and Cyberattacks

This article explores the attribution potential of command responsibility in the cyber realm. The focus is on military commanders under whose command cyberattacks have been conducted that constitute or cause violations of international humanitarian law. While the law on command responsibility has seen some significant developments in the early case law of the International Criminal Tribunal for the former Yugoslavia, its application and practical effect has been quite limited. Prosecutors often opt to charge under other theories of liability, such as aiding and abetting and Joint Criminal Enterprise. Securing convictions under these liability theories is less onerous. Over the years, however, command responsibility has been broadened. The recent International Criminal Court ruling in Bemba can be regarded as another step in expanding the reach of command responsibility. Taking account of a more expansive concept of command responsibility, I discuss three scenarios of cyberwar crimes where the link between the commander and the crime differ in proximity. Command responsibility is most likely to trigger liability when cyber units are integrated into the army and are part of regular operations (scenario 1). Outsourcing cyber operations, however, can trigger liability, even when hackers remain anonymous (scenario 2). This would, however, require proof of link between a commander’s subordinates and (anonymous) hackers. When there is no such link there can be no command responsibility (scenario 3).

Insider unauthorised use of authorised access: What are the alternatives to the Computer Misuse Act 1990?

Case-law developments in the United States have supported narrower interpretations of the Computer Fraud and Abuse Act 1986 (CFAA) in cases of unauthorised use of authorised access. This issue has been one that UK courts have also debated in the past and thus this renewed interest in the concept of insider unauthorised access offers an opportunity to bring this debate to the fore again. Starting from discussing the recent US case law, this paper further analyses relevant UK precedent and identifies legal provisions that are applicable when dealing with such incidents in addition to the Computer Misuse Act 1990. More particularly, it identifies provisions, mainly in the Data Protection Act 1998 and the Fraud Act 2006, which could substitute for the Computer Misuse Act 1990 in prosecuting insiders and thus clarifies the extent of the prosecutors’ legal arsenal and manoeuvring space when dealing with exceeding unauthorised access.