State Common Law Research Articles

Dispute over the 1974 MoU Box between Indonesia and Australia: How MoU Legally Binding in Two Countries?

This study aims to delineate the legal authority of Memorandum of Understanding (MoUs) within the jurisdictions of Indonesia and Australia, particularly concerning the resolution of international civil law disputes. The research employs a normative juridical approach, utilizing legal reviews and secondary data for support. The findings reveal that in civil law states, notably Indonesia, MoUs are regarded as binding agreements in accordance with the "Agreement is Agreement" perspective as per Article 1338 (1) of the Civil Code. Conversely, common law states, such as Australia, generally perceive MoUs as non-legally binding. However, an MoU may attain validity and binding status if it fulfills the six stipulated requirements outlined in Australian contract law. To address the dispute surrounding the 1974 MoU BOX between Indonesia and Australia, resolution options include examining international civil law rules based on primary and secondary links or resorting to an international arbitral tribunal.

Legal Traditions as Economic Borders

This article makes two main claims: A state’s legal tradition is embedded into its domestic institution in each issue area and a state that has a common/civil law-type domestic institution in a certain issue area (not necessarily a state that has common/civil law tradition) prefers common/civil law-type international agreements in the same issue area. The consequence of these two claims is that states’ legal tradition is often one of the primary sources of international cooperation, especially issue-specific cooperation. This in turn means that the difference in legal traditions is often a potential factor that would induce economic disintegration. By conducting theoretical and empirical investigations of three issue areas covered by free trade agreements (i.e., trade in goods, trade in services, and investment), this article demonstrates that different modes of governance are preferred by civil and common law states domestically and internationally, and that the difference in domestic systems partially explains participation and non-participation in international agreements.

A Comparative Analysis of Contract Law in Common Law and Civil Law Jurisdictions

Contract law's key tasks include the creation, interpretation, and enforcement of agreements between parties. As a result, contract law is seen as an essential component of all types of legal systems. However, due to the distinct historical, cultural, and judicial contexts of common law and civil law states, the development of contract law has taken a different path in each of these jurisdictions. A comparison is made between the core ideas, central concepts, and different approaches that are characteristic of contract law in common law and civil law regimes. the beginnings and development of contract law within the context of both the common law and the civil law legal systems. the development of contractual ideas, shedding light on the various foundations that continue to have an impact on contemporary legal philosophy, and making reference to the legacy left behind by the Roman law tradition and the English common law history. a comparison and contrast of the impact of reasoning based on precedent in common law and codified statutes in civil law is used to illustrate the various techniques that are used to govern the interpretation and adjudication of contracts.

What We Talk About When We Talk About the Duty of Care in Negligence Law: The Utah Supreme Court Sets an Example in Boynton v. Kennecott Utah Copper

Abstract Every day, state common law courts define the duty of care in negligence law. There is no formula for how courts should determine duty. Yet when judges are charged with important decisions about whether to open or shut the courthouse doors to whole categories of claimants, judges need some framework for decision. This article commends as an exemplar, the Utah Supreme Court’s decision in Boynton v. Kennicott Utah Copper, a take-home asbestos exposure case. The power of Boynton is not only the answer it provides, but also the coherent framework for analysis that Justice Constandinos Himonas’ opinion sets forth. The opinion’s framework incorporates established principles as well as important tort policies such as harm prevention. Boynton’s structure at once provides the stability and consistency of precedent befitting common law adjudication while also incorporating the public policy and pragmatic concerns that have long guided tort law’s development. Boynton’s framework achieves a similar result to the one in the Third Restatement—creating duty and no-duty rules with possibility of exception based on principle and policy factors. However, Boynton does so through traditional terminology that has aquired meaning through repeated historical application. Courts, scholars and students would be well advised to examine the Utah Supreme Court’s approach to duty analysis.

A History of Double Criminality in Extradition

Abstract This article sets out the history of double criminality in the law of extradition. It shows how that it only emerged as a legal requirement in the ‘Jay Treaty’, the 1794 treaty between theUSand UK. The article explores how the ‘Jay proviso’, a procedural requirement that the requesting state produce sufficient evidence to satisfy the requested state of the criminality of the requested person, morphed through interaction between common law and civil law states into a substantive requirement that the acts for which extradition is requested be criminal under the laws of both states. The article diccusses the evolution of the idea, and of its rationale, and then concludes that acceptance of this idea by the early part of the 20th Century confirmed its status as a general principle of law, or perhaps even a rule of customary international law.

Fighting Over Forum: How State Common Law Public Nuisance Claims Will Shape the Future of Climate Change Litigation


 

Admissibility of Hearsay Gathered Under MLAT: A Tempest in Canada

One of the most pervasive and longstanding problems in the practice of mutual legal assistance in criminal matters between states has been ‘form of evidence’ – specifically, can the requested state provide evidence in such form as will be useful and admissible under the criminal evidence laws of the requesting state? It tends to be common law states that have difficulties with admissibility of MLAT-sourced evidence, and these often develop ‘work-arounds’ in their laws which attempt to relax admissibility standards. Canada is one such state, but a series of recent prosecutions has revealed judicial resistance to the tools employed. This note examines these cases and suggests some lessons they contain for broader practice.

Court precedent as a source of constitutional law of foreign countries

In modern conditions, the study of the sources of constitutional law of foreign countries is extremely relevant. The scientific article determined that judicial precedent is the main source of constitutional law of the states of the Anglo-Saxon legal system and an auxiliary source of constitutional law in the Romano-Germanic legal system.
 The scientific article also focuses on the fact that on February 23, 2006, a fundamental Law was adopted in Ukraine – the Law of Ukraine «On the Implementation of Decisions and Application of the Practice of the European Court of Human Rights». It was determined that the adoption of the above-mentioned legislative act had at one time not only a theoretical significance for legal science, but primarily a practical significance for the functioning of the courts, since the requirement of this legislative act is the strict implementation of the decisions of the European Court of Human Rights, which in turn recognizes precedential law.
 The work also determined that earlier, court precedent in Ukraine was not a universally recognized source of constitutional law. However, over time, court precedent began to take on extremely important importance, and domestic courts increasingly operate with the practice of higher courts when making certain decisions. Therefore, the scientific article substantiates the importance of the study of judicial precedent as a source of constitutional law in foreign countries, since the relationship to this source of constitutional law in common law states and continental law states is fundamentally different.
 Also, in the scientific article, special attention is paid to issues related to the practice of applying judicial precedent in each of the modern legal systems. In particular, it is determined what influence the court precedent had on the development of constitutional law, whether courts act as subjects of judicial law-making or not, the main aspects of the court precedent and its relationship with judicial practice are determined.
 The scientific article also highlights how judicial precedent is applied in France, Germany, Great Britain, as well as specific features of its application in Ukraine.
 As a result, it was determined that judicial precedent is determined by law as a special source of constitutional law of foreign countries, and therefore for Ukraine it should also occupy a particularly important place in the system of sources of constitutional law, although at the same time it is inferior to the normative legal act as a fundamental source of constitutional law - the German legal system, which includes Ukraine.

ABD HUKUKU UYARINCA OTONOM ARAÇLAR ÇAĞINDA TEKEFFÜLLER VE FEDERAL HUKUKUN ÜSTÜNLÜĞÜ

Autonomous vehicle (AV) technology promises society many social, economic, and environmental benefits. It is crucial to examine the legal environment behind this breakthrough technology. Under US law, where the AV technology is most regulated, this Article delves into two critical legal issues AVs will face: i) law of warranties and ii) preemption of state common law claims. This Article argues that the role of warranty claims would be limited because most AVs will not be sold to the public in the first years, meaning that there will be no express or implied warranties. However, we will likely witness AVs will be sold to the public at some point in the future. When this happens, express or implied warranties will arise in the contract between the buyer and the seller. Preemption of common law claims, including those relying on warranties, would bring complex and uncertain problems as to whether these claims are preempted by federal law on AVs. Since previous preemption cases related to conventional motor vehicles involved specific designs, this Article asserts that performanceoriented standards––assessing whether an AV drives more safely than a conventional vehicle––will work around unpredictable preemption questions. Moreover, if the threat of future litigation becomes too great for AV manufacturers, federal preemption could limit AV manufacturers’ liability for compensation to injured plaintiffs. These proposals will constitute pragmatic and efficient solutions to the preemption-related, complicated and uncertain problems.

The Problem of Procedural Complicity in Georgian Civil Procedural Law

The paper discusses such an important institution of Georgian civil procedural law as procedural complicity. In particular, the legal grounds for co-participation in civil proceedings, such as: 1) the subject matter of the claim, 2) the common right and 3) the basis of the claim. We considered it necessary to discuss the above preconditions in order to avoid mistakes in resolving the issue of involving the parties (plaintiffs) and the parties (parties) participating in the proceedings. Making this mistake, in turn, can lead not only to a timely decision on the case, but also, most importantly, the ability to make an objective decision. As a result of the analysis and comparative study of the case law of Georgia, as well as the legislation of foreign countries, including continental and common law states, the issue of the need to make changes in the Georgian Civil Procedure Law regarding the institution of complicity was identified

СПОСОБЫ ЗАЩИТЫ ГРАЖДАНСКИХ ПРАВ ПО АНГЛОСАКСОНСКОМУ ПРАВУ

This article is devoted to the system of civil law remedies applicable in the common law states, in particular, in England. The subject of the research covers the specific civil law remedies which are applied by the courts and in self-defence, as well as generally applicable classifications of such methods of protection. The analysis of a vast number of judicial precedents concerning the application of the main methods of protection of civil rights has been carried out. The categories of civil law remedies, which are used in an out-of-court and judicial (including those used at various stages of the trial) procedure, have been highlighted. It was revealed that the main civil law remedy is compensation or compensation for losses of the plaintiff. It is shown that the protection of civil rights in Anglo-Saxon law is aimed at the most effective protection of the rights of the plaintiff, but not punishment or diminution of the rights of the defendant. It was also revealed that in Anglo-Saxon law there are similar (the same type) civil law remedies, which were formed in parallel in common law and the law of justice. Based on the results of the analysis, it was concluded that the system of civil law remedies in the common law is complex and overloaded, which complicates law enforcement and applying for protection of the right.

A study on Major legal issues with Joint bank account for Adult guardianship: Implications of the joint bank account in the Common law

The purpose of this study is to introduce a joint bank account for the purpose of adult guardianship in the Common law and find out the implications of this system. As the aging society accelerates, the importance of the adult guardianship increases. In Korea, the use of the adult guardianship system is low compared to that of major advanced countries. One of the most important aspects of adult guardianship is the management of the elderly s wealth especially cash holdings, which is generally vulnerable to “financial abuse”. In Korea, there is a practice of managing the older parents’ cash holdings by the de facto guardians such as adult children. However, this method has a limit in protecting the property of the elderly, and at the same time has a side effect that family members can use it inappropriately. The authors illustrate the use of “joint bank accounts” for the purpose of adult guardianship in Common law states because it is already widely used in many countries. Of course, it is possible to open a joint bank account in Korea but it is not suitable for protecting the elderly because it is generally opened for a specific purpose, for example business partnerships, and the sole right of withdrawal is limited. The authors suggest that it is desirable to open a joint bank account with equal rights between the elderly and the guardian. Also, it will be possible to transfer the balance to the guardian after the death of the elderly by a special contract. In conclusion, if the “Korean-style joint bank account” is possible, it is simpler and less expensive than the current adult guardianship system which is leaded by the court, and it will fit well with Korean traditional familism in favor of kinship guardians. The authors suggest that such joint bank account can be a powerful solution for the guardianship in Korea where the guardianship system is considered not established properly or developed. Based on the experiences of major advanced countries, it is expected that such a practice will emerge in Korea in the near future.

Nullity of Administrative Acts: Grounds, Legal Regime, Discretion

The issues of criteria for the nullity of administrative acts are considered, the ratio of an illegal and invalid act, as well as a null and void act, analyzed, the possibility of administrative discretion in determining an invalid administrative act is analyzed, the role of vague legal concepts when an administrative act is declared invalid is demonstrated. The Author uses a comparative legal method, including the analysis of the practice of Germany, Great Britain, South Africa, Canada, Japan, South Korea, Russia and other countries. Special attention is paid to the laws on administrative procedures adopted in the post-Soviet territory and the influence of the German doctrine on this process. It is concluded that for the continental legal order the most preferable way to formalize the criteria for the invalidity of an administrative act are laws on administrative procedures or their analogs, while in the common law states, legal doctrine and judicial practice are of great importance. At the same time, many countries avoid recognizing acts as null and void, preferring the construction of their voidability. This is related to ensuring the stability of public administration, the predictability of administrative activities, and the protection of legitimate expectations. In any case, the theory of the reality of the administrative act is prevailing, and nullity is rather viewed as an anomaly. Therefore, only acts that are adopted with the most significant violations, which do not allow talking about the fair consequences of their adoption, are considered invalid. The illegality of an act does not automatically entail its nullity. A similar trend can be traced in Russia, although individual norms of law and practice of courts indicate the possible formation of a doctrine of the invalidity of an administrative act in the Russian legal system. Insignificant acts do not give rise to consequences from the moment of their adoption, legally they do not exist, and nothing can generate anything. With this approach, the courts only fix the criterion of invalidity without a dispute about law. Insignificant acts should be distinguished from contested ones, the latter may turn out to be illegal, but for a number of reasons (for example, protection of trust) the fact of their existence is confirmed along with their consequences.

Domestic legal traditions and international cooperation: Insights from domestic and international qualification systems

The compatibility in terms of domestic systems that embed specific values of particular legal traditions is a critical determinant of international cooperation. We analyze international cooperation on professional qualifications because a domestic qualification system best showcases its distinct approach to social governance. Civil law states, which value written rules and certainty, use paper examinations as a core component of competency assessment of professionals, and upon international cooperation they opt to harmonize paper examinations. Common law states regard track record as important in assessing competence, and they often mutually allow professionals from partner states who have a good track record to practice in their territory. Cooperation between civil and common law states is possible when both parties make a conscious effort to align their domestic systems. In this case, an international mechanism has features of harmonization and mutual recognition. We also consider how to generalize the findings to explain states’ attitude toward inter-governmental organizations in general.

Comparative Legal Research on Contract Law Changes Under Covid-19 Pandemic: England, United States, Asia and Ukraine

The study aims to characterize the changes in contract law under the influence of the Covid-19 pandemic in Ukraine and the world. For this purpose, we used systemic, comparative-legal, and formal-legal methods. The paper consists of an introduction, methodology section, bibliography review, results, discussion, conclusions, and references. In the result of the study some distinctive features of changes in contract law under Covid-19 pandemic at the level of national law of Ukraine and some foreign countries were characterized and highlighted. The authors came to the conclusion that changes in contract law are typical for the countries of continental law. Instead, common law states remain resistant to changes in contract law, particularly, the force-majeure application. The reason for this lies in the specific doctrine of the common law countries, as England and the United States. These countries’ courts remain unshakable in terms of managing the contracts performance. In contrast, some Asian and European states (including Ukraine) are characterized by dynamic changes in legislation, given the pandemic situation. The paper also discusses similar institutions like hardship and frustration of purpose, which are both applicable in continental and common law countries.

Mechanisms of elimination of undesired evidence from criminal trial: a comparative approach

Este artigo pretende apresentar dois modelos de exclusão de provas indesejáveis que operam em ordenamentos continentais e de common law. São analisados os mecanismos de bloqueio de informações antes de se tornaram provas no processo penal, os quais podem ser definidos como instrumentos (soluções) adotadas em um determinado modelo de processo penal que permite a verificação e eventual exclusão de provas inadmissíveis pois definidas como indesejáveis à verificação dos fatos. Com base em uma “perspectiva de modelo”, será descrito o funcionamento desses mecanismos de exclusão (ou bloqueio) de provas indesejáveis nos Estados Unidos e na Inglaterra, na Alemanha, na França, na Polônia e na Itália. Também serão analisados o estágio da eliminação e o tipo de procedimento para aplicar o bloqueio. Analisar-se-á o modo em que a análise atomística e holística da prova atua e as suas consequências. A última parte do texto irá demonstrar como a existência de distintos motivos para a exclusão da prova na forma de ilegalidade, não fiabilidade e irrelevância, a depender da gravidade da violação da lei, podem resultar em diferentes consequências. Isso permitirá verificar se os modelos continentais ou de common law são coerentes e efetivos e se eles atendem ao objetivo almejado de eliminar provas indesejáveis. Nas conclusões, será demonstrado que o árbitro final sobre admissibilidade da prova em ambos os modelos é o julgador e como isso autoriza a ponderação dos interesses legalmente protegidos em cada caso. Assim, também se observará que no modelo continental de exclusão de provas indesejáveis não se pode afirmar que há um mecanismo integralmente desenvolvido para bloquear informações de se tornarem provas no processo penal.

On Occasion of the 12th “Days of AMNuBiH 2021” and “SWEP 2021” Conferences, Sarajevo, Bosnia and Herzegovina

On Occasion of the 12th “Days of AMNuBiH 2021” and “SWEP 2021” Conferences, Sarajevo, Bosnia and Herzegovina

Interpretation of the European Convention for the Protection of Human Rights and Fundamental Freedoms in the light of modern concepts of legal understanding

The article presents the results of theoretical and practical research of the interpretation of the European Convention for the Protectionof Human Rights and Fundamental Freedoms in the light of modern concepts of legal understanding.On July 17, 1997, Verkhovna Rada of Ukraine ratified the European Convention for the Protection of Human Rights and FundamentalFreedoms of 1950 (hereinafter – the Convention), which was the initial stage in the formation and development of Ukrainianlaw and legal science in general. From that moment, a new stage began – the introduction of legal practice and legal values of Europeinto Ukrainian law.The Convention for the Protection of Human Rights and Fundamental Freedoms, as a complex mechanism has a direct effectwithin the jurisdiction of the Ukrainian court system, the principles of interpretation of the Convention applied by the European Courtof Human Rights are valuable and special for judges in Ukraine. One of the main methods of interpreting the Convention is the principleof judicial precedent. Judicial case law is an important part of the legal system of common law states, and the increase in the boundariesof judicial precedent has been observed in Western Europe over the past century. The case law of the European Court of Human Rightsis an additional factor for the official recognition of judicial precedent as a source of law in the protection of human rights, which willhelp strengthen the independence of the judiciary in Ukraine.
 Nowadays, the use of the Convention for the Protection of Human Rights and Fundamental Freedoms in Ukraine makes it possibleto replace the prevailing positivist views on law, apply the latest principles of interpretation of human and civil rights, and developthe constitutional jurisprudence of fundamental human rights.The Convention opens a new horizon of tasks in the development of democracy in Ukraine, with the basic principles of whichvarious legal acts of the country must be monitored for compliance with fundamental human rights and freedoms.Through the interpretation and use of the Convention, our state has begun a rapid process of moving away from the positivistunderstanding of law, which has resulted in the emergence of the necessary for the further development of pluralism of legal understandingof law.

Interpretation of the European Convention for the Protection of Human Rights and Fundamental Freedoms in the light of modern concepts of legal understanding

The article presents the results of theoretical and practical research of the interpretation of the European Convention for the Protectionof Human Rights and Fundamental Freedoms in the light of modern concepts of legal understanding.On July 17, 1997, Verkhovna Rada of Ukraine ratified the European Convention for the Protection of Human Rights and FundamentalFreedoms of 1950 (hereinafter – the Convention), which was the initial stage in the formation and development of Ukrainianlaw and legal science in general. From that moment, a new stage began – the introduction of legal practice and legal values of Europeinto Ukrainian law.The Convention for the Protection of Human Rights and Fundamental Freedoms, as a complex mechanism has a direct effectwithin the jurisdiction of the Ukrainian court system, the principles of interpretation of the Convention applied by the European Courtof Human Rights are valuable and special for judges in Ukraine. One of the main methods of interpreting the Convention is the principleof judicial precedent. Judicial case law is an important part of the legal system of common law states, and the increase in the boundariesof judicial precedent has been observed in Western Europe over the past century. The case law of the European Court of Human Rightsis an additional factor for the official recognition of judicial precedent as a source of law in the protection of human rights, which willhelp strengthen the independence of the judiciary in Ukraine.
 Nowadays, the use of the Convention for the Protection of Human Rights and Fundamental Freedoms in Ukraine makes it possibleto replace the prevailing positivist views on law, apply the latest principles of interpretation of human and civil rights, and developthe constitutional jurisprudence of fundamental human rights.The Convention opens a new horizon of tasks in the development of democracy in Ukraine, with the basic principles of whichvarious legal acts of the country must be monitored for compliance with fundamental human rights and freedoms.Through the interpretation and use of the Convention, our state has begun a rapid process of moving away from the positivistunderstanding of law, which has resulted in the emergence of the necessary for the further development of pluralism of legal understandingof law.

La inmunidad absoluta del árbitro: una equivocación con orígenes históricos

Este texto explora el desarrollo de la doctrina de la inmunidad del árbitro y su situación actual en el marco del derecho consuetudinario de los Estados Unidos. Para ello, examina la forma en que la doctrina se ha desarrollado en otras jurisdicciones del common law y de derecho civil, propor­cionando un contexto y un contraste. Asimismo, indaga por qué Estados Unidos es el único país que concede una inmunidad absoluta al árbitro. Se analizan las decisiones posteriores a la guerra civil que desempeñaron un papel fundamental en la formación de la doctrina. Finalmente, se hace hincapié en la cuestión del “por qué” en lugar del “qué”, así la metodología y el razonamiento jurídico adquieren mayor relevancia que las propias conclusiones