Common Law Rules Research Articles

Analysing The Rule of Common Law In Supervision Of Illegal Wild Trade Cites By Route Sea’s

Analysing The Rule of Common Law In Supervision Of Illegal Wild Trade Cites By Route Sea’s

Novi međunarodni privredni sudovi

In this paper, the author provides an overview of the main characteristics of international commercial courts, their composition and jurisdiction, as well as private international law instruments that ensure the recognition and enforcement of their decisions abroad. International commercial courts are national courts of international jurisdiction. They are established by individual states that aspire to be or become significant global centres for the resolution of commercial disputes. They are characterized by a certain degree of internationalization, reflected in their ability to conduct proceedings in the English language and in the origin of judges, who are, in some instances, foreign nationals. Some international commercial courts adjudicate cases according to common law rules, even though they are based in countries with legal systems based on continental law or Sharia law. The procedural rules before most of these courts incorporate elements of arbitral procedural rules and alternative dispute resolution methods. They generally have jurisdiction in commercial disputes with an international element, and they recognize a written choice-of-court agreement of the parties as the basis for international jurisdiction. In this regard, there is no requirement for any connection with the state where the court is based for valid submission to jurisdiction.

Patients' Suits Against Psychiatrists for Not Preventing the Patients' Criminal Acts.

Patients who allege negligent treatment by their psychiatrists can sue to be compensated for the harms they experience. But what if the harms result from a criminal act committed by the patient that the patient claims the psychiatrist should have prevented? A long-standing common law rule bars plaintiffs from being compensated for harms caused by their own wrongdoing. The Supreme Court of Pennsylvania recently considered the scope of this rule in the case of a psychiatric patient convicted of murder. Even when the rule is upheld, various exceptions may exist, and there is pressure to do away with an absolute bar on recovery of damages.

One hundred (and fifty) years of solitude: the Indian Evidence Act 1872 as a lost project of law reform

ABSTRACT The Indian Evidence Act 1872 was a significant component of the legal codification project of colonial India. It aimed to consolidate scattered common law rules of evidence into an organized and workable code. Sir James Fitzjames Stephen, its principal draftsman, attempted to design a statute that would not only reorganize evidence law into cogent provisions but also improve its most confusing aspects, such as the fact-evidence distinction, hearsay, and relevance. Stephen did this by introducing conceptual categories and amending existing rules. In this paper, I show how the design of the Act aimed to achieve substantive reform of evidence law. I argue that judicial interpretation and academic scholarship have misconstrued the Act’s principles and structure, undermining its intended improvements on common law rules. Consequently, the legal confusions it had sought to resolve have continued to persist in evidence law.

Reframing the English Foreign Act of State Doctrine

This article proposes a way to reframe the English foreign act of State doctrine. The doctrine is an established rule of English common law but its contours and application remain ill‐defined, despite the Supreme Court's restatement in Belhaj v Straw. The doctrine in its current form emerges from the accretion of precedents over some 350 years, but still lacks a unifying framework bringing its different strands together. This article argues that English courts should reframe the doctrine by reference to the distinction between elements of a rule that are embedded in its definition, called ‘limitations’, and elements of a rule that exist separately from it, called ‘exceptions’. This distinction has been developed in legal philosophy to classify the elements of wrongs as definitional elements, constitutive of liability, and defences, defeating liability. Reframed according to this distinction, the English foreign act of State doctrine can be streamlined into one, single rule, instead of the three rules set out in Belhaj v Straw. This reframing has implications for the doctrine's characterisation as one of justiciability, abstention or restraint, and its compatibility with the duty to do justice, including under the European Convention on Human Rights.

Levmore on Simple Rules

In 1995, the Harvard University Press published my book Simple Rules for a Complex World, which set out my world view on a wide range of substantive issues related to, on the private side, the law of property, contract, tort, and restitution; and on the public side, the law of eminent domain and taxation. The framework that I developed in that book relies on key private law baselines to assess, among other things, the efficiency and desirability of various forms of legislation that play off these common law rules dealing with environmental law, land use regulation, and labor law. Saul Levmore poses a thousand questions about if and how the scheme can work but displays at the end of the day some sympathy with my approach, which he thinks corresponds to the many public choice issues to which his own career has been deeply involved. It is impossible to respond to all his wellaimed sallies at this occasion, so I shall try to tease out why I think that the discipline of simple rules continues to survive, notwithstanding his staccato-like criticisms.

Viewing the Law and Ethics of Premortem Interventions Through an Interpretive Lens.

Viewing the Law and Ethics of Premortem Interventions Through an Interpretive Lens.

SECTION 165 OF THE COMPANIES ACT 71 OF 2008: A COMPARATIVE DISCUSSION OF THE CONCEPTS OF RATIFICATION, ACCESS TO INFORMATION AND ALTERNATIVE REMEDIES

The lack of access to company files, company information and other company documents has historically been an obstacle to applicants attempting to institute derivative proceedings on behalf of a company. The information contained in these documents is critical in order to prove wrongful conduct. Section 165(14) of the Companies Act 71 of 2008 provides that the court is the final authority on whether to grant leave to institute proceedings: ratification is merely a factor for the court to consider. The subsection does away with the common-law rule that illegal acts or frauds on the minority (previously commonly known as the exceptions to the rule in Foss v Harbottle) are not ratifiable by the company. The availability of an alternative remedy is an important factor to consider when determining whether the derivative action will be in the best interests of the company, especially if the proposed derivative action may result in lengthy and time-consuming litigation. However, the availability of another remedy should not be a deterrent to applicants who wish to institute derivative proceedings.

Transforming a child's claim for loss of earning capacity

This article explores the possible constitutional transformation of a child's delictual claim for loss of earning capacity. As such, it is located at the intersection of the law of delict and child law. The current law on a child's claim for loss of earning capacity is explained first. It is shown that such a claim involves a concurrent violation of the constitutional rights to bodily integrity and property which common-law thinkers call a person's "personal immaterial property". A claim for loss of future earning capacity may be brought by or on behalf of a child in terms of the common law's rules for Aquilian liability. In this regard, it is noted that the assessment of future losses is a controversial legal issue because it necessarily involves speculation about future hypotheticals. While controversial, claims of this nature may be reasonably determined with reference to available evidence. In terms of the law, as it stands, factors that courts consider in quantifying a child's damages for loss of earning capacity include the average probable income, the child's schooling and familial context, wage statistics, and broad judicial discretion. It will be shown that these factors could be applied (and sometimes have been applied) in ways that perpetuate past patterns of exclusion and poverty that are often racially determined - ultimately resulting in some children's claims for loss of earning capacity being pitched below a liveable wage. Relying on the constitutional right to equality and the constitutional best interests of the child standard, it is argued that the common law ought to be developed in this regard to move our law of delict in the direction of distributive justice. In this regard, reference to "liveable wages" and "fairness" (as a consideration in exercising judicial discretion) may be appropriate guidelines used to quantify children's claims for loss of earning capacity in future.

Do Islamic-law wills contravene the common-law prohibitions against delegation of testamentary powers and incorporation by reference?

Although the Constitution of the Republic of South Africa, 1996 provides for the enactment of legislation recognising various systems of personal and family law, no legislation has yet been enacted to recognise Muslim personal laws of marriage, divorce or inheritance. This has not precluded South African Muslims from implementing Muslim personal laws in their private lives, with the assistance of various Muslim ulama bodies. In the sphere of inheritance, Muslim testators ensure that their estates devolve according to the Islamic laws of inheritance by incorporating the Islamic laws of inheritance into their wills. They also delegate their testamentary powers to ulama bodies to determine their Islamic-law heirs. This article explores whether the incorporation by reference of Islamic inheritance law into Islamic wills contravenes the common-law prohibition against incorporation by reference. It also discusses whether delegating testamentary powers to ulama bodies potentially contravenes the commonlaw rule against delegating testamentary powers. Although these practices may contravene the common-law rules, they should be accommodated by developing the common law to uphold the constitutional rights to religious and testamentary freedom.

Settlement Of Inheritance Dispute Through The Gampong Customary Court (Research Study at Gampong Jambo Mesjid Lhokseumawe City)

The Gampong Customary Court always strives to achieve justice for competing communities by seeking harmony and harmony as required by Qanun Number 9 of 2008 concerning the Advancement of Customs and Customs. However, there are many obstacles in solving wars because of each of them. The purpose of this study is to identify and explain the control over the payment of inheritance through the Customary Court in Gampong Jambo Mesjid, Kota Lhokseumawe and the obstacles encountered by the organizers of the Traditional Court of Gampong Jambo Mesjid, Kota Lhokseumawe in order to complete the inheritance. This type of assessment is a qualitative approach with a sociological juridical approach. The data sources used are primary data, including the results of interviews with informants and respondents. Secondary data sources come from primary legal materials, secondary legal materials and tertiary legal materials. According to the results of the study, it is known that; The mechanism for inheritance disputes through the Customary Court in Gampong Jambo Mesjid, Kota Lhokseumawe is carried out through deliberation techniques between members of the Gampong Customary Court, community leaders, and also from the families of the two disputing parties. Cases are resolved by prioritizing the principles of peace, kinship, and finding reliable sources of information on the matter. In a dispute, the disputing parties must be notified in accordance with the rules of common law, religion, and applicable positive law. The result of a joint decision, “Gani Ali Basyah is charged with paying compensation to Ti Aman in the amount of Rp. 7.500.000, - (Seven million five hundred thousand rupiah)". The obstacles faced by the executor of the Traditional Court of Gampong Jambo Mesjid, Kota Lhokseumawe in resolving the dispute were the difficulty of dealing with the defendant, the occurrence or difference of opinion between the defendant and the plaintiff, and the fact that the parties to the dispute did not provide information. We have filed a case with the Village Court to conceal the facts that led to the inheritance dispute, the provocation of third parties and the lack of accurate data on inheritance. It is recommended to open the views of the conflicting parties about the peace efforts and various legal aspects and their scope. The community has the right to continue to peacefully resolve inheritance disputes through the Gampong Customary Court. The settlement of cases will follow the mechanism recommended by Islamic law.

Nothing to Lose but Their Restraints of Trade: Lessons for Employment Non-Compete Clauses from EU Competition Law

Abstract Courts on both sides of the Irish Sea have handed down significant judgments in the field of post-employment restrictive covenants in recent years. This article argues that these cases expose the common law rules on restraint of trade as fundamentally inadequate for regulating non-compete clauses in the modern economy. Ultimately, the scope of these restrictive covenants can only be determined by examining the nature of the relevant market and defining the previous employer’s competitors. This article argues that courts should make full use of methods developed by EU competition law to define the limits of the relevant market, identify the competitors of the previous employer and assess the scale of the restraint. Although this method cannot fully determine the reasonableness of a non-compete clause, it would lead to more effective and systematic treatment of non-compete clauses that considerably improves upon the pragmatic and incompletely theorised approach currently taken by courts in both Ireland and the UK.

The Differences Made by the Transposition of the Consumer Sales and Guarantees Directive (1999) into English law: Could a case be made for extending the Changes to Non-Consumer Contracts?

It used to be a principle of English law that a seller or a party to a contract was not under a legal obligation to disclose to the buyer or the other party to the contract any facts relating to the contract, even if that fact “would have materially influenced” his decision to the contract. This principle was governed by the legal maxim of caveat emptor, i.e., let the buyer beware. The rle of caveat emptor ‘used’ to apply to a contract of sale of goods and other forms of contract except if the buyer could show that there was an express warranty of quality or there was fraud on the part of the seller. However, in relation to the sale of goods, which is the subject matter of this article, it may be argued that besides this known exception, the rule “has been tempered” by an implied condition in the common law that where the goods are sold by description, they shall be of merchantable quality “[answering] the description in the contract”. Although a purchaser could not benefit from this common law implied condition in the sale of specific goods, where he expressly demanded the goods for a particular purpose, there was an implied condition that the goods should be reasonably fit for that purpose.These common law rules applied even before the Sale of Goods Act 1893. Firstly, this article brings out and analyses, in terms of the sale of goods, some of the differences that have been affected by the transposition of the Directive on consumer sales and guarantees into English law through the 2002 Regulations, with emphasis on the key provisions of the Regulations, i.e., Reg. 3, 4, 5, and 15-16. Secondly, as these Regulations, as well as the changes they brought, aimed at protecting person “who deals as consumer” or consumers generally, this article argues whether or not a case could be made for extending these changes to non-consumer contracts. It may be interesting to note that, whereas the changes made by the 1994 Act were “plainly directed towards finding a formulation which is appropriate to the consumer as well as to commercial sales,”; the 2002 Regulations, on the other hand, are directed only to consumers.

Does the UK Home Office Care about the Rule of Law?

Abstract The instrumentalisation of law for the purposes of creating a ‘hostile environment’ and deterring ‘unwanted migration’ is particularly visible in the UK. The new Nationality and Borders Act 2022 contains proposals on asylum which show a rejection of international law norms and conventions, without having had the political courage to put that rejection squarely to the public. That is not new. Right from the emergence of asylum as a political issue in the 1980’s, the lukewarm official ‘welcome’ never quite hid the stance of disbelief which underlay the UK’s legal and procedural responses. A parallel process, beginning even earlier but accelerating from 2010 onwards, has taken place in UK domestic immigration law. New legislation, Immigration Rules, policies, application procedures and litigation practices show diminishing respect for rule of law principles. This article uses simple and hopefully uncontroversial definitions of international law norms and accepted common law rule of law principles against which to analyse and critique key aspects of UK immigration control. It concludes that UK policies and practice have over time displayed an increasing hostility to those norms and principles, resorting to ignorant and even brazen indifference to facts, evidence, and analysis, and widening the gap between domestic and international law in important respects.

COHABITATION AND THE SAME-SEX MARRIAGE. A COMPLEX JIGSAW PUZZLE Minister of Home Affairs v Fourie; Lesbian and Gay Equality Project v Minister of Home Affairs 2006 3 BCLR 355 (CC)

The aim of this note is, firstly, to give an overview of the Constitutional Court (CC) judgment in Fourie v Minister of Home Affairs; secondly, to discuss the consequences of same-sex marriages; thirdly, to highlight certain areas of the law that require legislative intervention to clarify the application of common law rules to same-sex spouses; and, lastly, to examine the discrepancy that will exist after December 2006 between same-sex and heterosexual cohabitees.

SHOULD MAGISTRATES TAKE DOWN CONFESSIONS?

Section 217(1) of the Criminal Procedure Act 51 of 1977 (the Act) sets forth the requirements for the admissibility of a confession made by any person in relation to the commission of an offence. Section 217(1)(a) provides that where a confession is made to a peace officer who is not a magistrate or a justice of the peace, such a confession must be confirmed or reduced to writing in the presence of a magistrate. Pursuant to section 217(1)(b), where a confession has been made to a magistrate or has been confirmed and reduced to writing in the presence of a magistrate, it is deemed to be admissible in evidence upon mere production (ss (b)(i)); and presumed, unless the contrary is proved, that the accused made the confession freely and voluntarily, while she or he was in her or his sound and sober senses, and without having been unduly influenced in making it (ss (b)(ii)).In S v Zuma (1995 (1) SACR 568 (CC)), the Constitutional Court found that section 217(1)(b)(ii) of the Act violated the right to a fair trial as embodied in section 25(3) of the Constitution of the Republic of South Africa, 1996 (the Constitution). It is a longstanding principle of both English and South African law of evidence that the state bore the burden of proving that any confession on which it wished to rely was freely and voluntarily made. Section 217(1)(b)(ii) of the Act placed on the accused the burden of proving on a balance of probabilities that a confession made to or recorded by a magistrate was not free and voluntary. This section, therefore, created a legal burden of rebuttal on the accused – a so-called “reverse onus”.The court held that the common law rule requiring the state to prove that a confession was made freely and voluntarily, was integral and inherent in the right to remain silent after arrest, the right not to be compelled to make a confession, and the right not to be a compellable witness against oneself. These rights are the necessary reinforcement of the principle that the prosecution must prove the guilt of the accused beyond reasonable doubt. Reversing the burden of proof seriously compromises and undermines these rights. The court thus declared that section 217(1)(b)(ii) of the Act violated the provisions of the Constitution of the Republic of South Africa, 200 of 1993 (the interim Constitution) and was invalid.In the authors’ view, with the Constitutional Court’s decision in Zuma, the principal rationale for sections 217(1)(a) and (b) of the Act seems to have fallen away. After all, the main reason to specifically provide for a confession made to or reduced to writing by a magistrate would be to ease the process of admissibility of such a confession without the need to test its admissibility at a trial-within-a-trial. After Zuma – whether a confession was made to or reduced to writing by a magistrate or not – if the accused contests the admissibility of the confession, the presiding magistrate must hold a trial-within-a-trial in which the state bears the onus of proving the admissibility of the confession on a balance of probabilities.This raises a possibility that did not exist prior to Zuma, namely that a magistrate to whom a confession was made or who reduced it to writing can be called as a witness by the state in a trial-within-a-trial. The authors question whether it is conducive to central tenets of the judicial function – independence and impartiality – for magistrates to take confessions at all, and thus be required to testify in any matter in which accused persons challenge confessions taken down by magistrates.

Rozliczenia majątkowe oraz reprezentacja jednopłciowych partnerów w związkach nieformalnych

Asset settlement and representation of same-sex partners in informal relationships The division of assets after the dissolution of a same-sex relationship generates an increasing number of problems in relation to the institutionalization of both same-sex and different-sex relationships in different EU countries. Polish law does not recognize civil partnerships or same-sex marriages. However, it has become more common for a same-sex partners from a marriage registered outside Poland to acquire rights under the rules of common marital property law in force in another country, which has legal consequences under Polish law. In practice, in day-to-day matters and in legal transactions, partners act on the basis of very specific powers of attorney, granting them a much wider range of rights than those to which spouses are authorized under the common marital property law.

Rozliczenia majątkowe oraz reprezentacja jednopłciowych partnerów w związkach nieformalnych

Asset settlement and representation of same-sex partners in informal relationships The division of assets after the dissolution of a same-sex relationship generates an increasing number of problems in relation to the institutionalization of both same-sex and different-sex relationships in different EU countries. Polish law does not recognize civil partnerships or same-sex marriages. However, it has become more common for a same-sex partners from a marriage registered outside Poland to acquire rights under the rules of common marital property law in force in another country, which has legal consequences under Polish law. In practice, in day-to-day matters and in legal transactions, partners act on the basis of very specific powers of attorney, granting them a much wider range of rights than those to which spouses are authorized under the common marital property law.

Joint Venture and Value Added Tax Regime. Common Law Rules versus Tax Law Rules

The overall economic situation considers a scenario that is not exactly optimistic in the context of the current health crisis. The need for cheap resources will probably lead to the seizing of the opportunities provided by the trade companies, without patrimonial transfers of goods and labour force. Taking this context into account, we believe that the mixed ventures might become relevant again nowadays. The challenge posed by the indirect taxation of these associations without legal personality points out a series of practical aspects which we consider that should be rigorously and thoroughly addressed, especially that the tax payers’ option is not always in accordance with that of the fiscal authorities causing contentious issues, which are time and money consuming and at the same time lead to forced executions endangering the company’s existence itself. The article hereby is based on the material tax law rules as regards the common law provisions, with the aim of setting up the tax deductions regime regarding the contributions and purchases related to joint ventures, given that the Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax does not include specific provisions for joint ventures, which is why the jurisprudence of the Court of Justice of the European Union is applicable in this matter.

Co-existence of statutory provisions and common-law rules make the smooth application of the Companies Act of 2008 to be untenable in certain respects

The Companies Act 71 of 2008 does not provide a complete codification of company law in South Africa, with the common law still having application. While the Act has done away with certain common-law rules, for instance, the common-law derivative action, it has, in other instances, maintained a co-existence of commonlaw rules and statutory provisions. This article discusses how the coexistence of common-law rules and statutory provisions impacts the smooth application of the Act in the context of the Turquand Rule, pre-incorporation contracts and the common-law stipulatio alteri, and the partial codification of directors’ duties in the Act.