Comparative Analysis Of Case Law Research Articles

LEGAL CONTROVERSIES IN CROSS-BORDER SURROGACY: A CENTRAL EUROPEAN PERSPECTIVE ON THE RECOGNITION OF LEGAL PARENTHOOD THROUGH SURROGACY ESTABLISHED ABROAD

Background: This paper explores the legal field of surrogacy from a Central European perspective, focusing on how countries such as Austria, Germany, and Switzerland address the recognition of parental status established abroad. While the prevailing attitude among Central European states is to prohibit surrogacy within their national laws, there is an increasing tendency to bypass these bans by seeking surrogacy services abroad. This phenomenon, termed reproductive tourism, raises complex legal questions about the recognition of foreign parental status determinations. Methods: The methods used include a comprehensive review of international and autonomous national legal rules as well as a comparative analysis of case law from Central European courts regarding cross-border surrogacy and parenthood recognition. The study examines legal controversies employing Austrian family law as an example to assess highly topical issues arising from surrogacy. It incorporates data from various legal sources, including the Austrian Constitutional Court, the German Federal Court of Justice, the Swiss Federal Supreme Court, and the European Court of Human Rights. Results and conclusions: The findings reveal significant differences between Austria, Germany, and Switzerland regarding the recognition of parental status established by way of surrogacy abroad. While supreme court decisions in these countries tend to prioritise the best interests of the child – often recognising foreign surrogacy arrangements to avoid leaving children without legal parents – their judicial approaches differ considerably. The Austrian Constitutional Court adopts a more inclusive approach by accepting foreign determinations from any authority, such as birth certificates, under the concept of automatic recognition. In contrast, the German and Swiss supreme courts acknowledge only formal court decisions. For cross-border surrogacy cases that do not fulfil this requirement, these countries apply the national law of the child's habitual residence or, as a fallback, the law of the intended parents’ country of origin. Since both German and Swiss law categorically forbid surrogacy, only the genetic father is typically recognised, while the intended mother is directed to adoption. This aligns with the opinion of the ECtHR, which still considers the method of establishing parenthood to be within the sovereignty of a state. This article advocates for a balanced approach that respects both the legal principles of national states and the fundamental rights of children born through an arrangement with a surrogate mother in another country.

Blockchain in the courtroom: exploring its evidentiary significance and procedural implications in U.S. judicial processes

This paper explores the evidentiary significance of blockchain records and the procedural implications of integrating this technology into the U.S. judicial system, as several states have undertaken legislative measures to facilitate the admissibility of blockchain evidence. We employ a comprehensive methodological approach, including legislative analysis, comparative case law analysis, technical examination of blockchain mechanics, and stakeholder engagement. Our study suggests that blockchain evidence may be categorized as hearsay exceptions or non-hearsay, depending on the specific characteristics of the records. The paper proposes a specialized consensus mechanism for standardizing blockchain evidence authentication and outlines strategies to enhance the technology’s trustworthiness. It also highlights the importance of expert testimony in clarifying blockchain’s technical aspects for legal contexts. This study contributes to understanding blockchain’s integration into judicial systems, emphasizing the need for a comprehensive approach to its admissibility and reliability as evidence. It bridges the gap between technology and law, offering a blueprint for standardizing legal approaches to blockchain and urging ethical and transparent technology use.

Copyright Infringement of Photographs on E-commerce Platforms

In the rapidly evolving landscape of e-commerce, protecting intellectual property rights, particularly in the realm of photography, has become increasingly vital. This article delves into the complex issue of copyright infringement on e-commerce platforms, with a specific focus on the concept of intermediary liability. While e-commerce platforms offer unparalleled convenience and global reach to consumers, they also present formidable challenges in upholding the rights of content creators, especially photographers. The article uniquely emphasizes the concept of intermediary liability in the context of e-commerce platforms. This focus is particularly relevant given the widespread use of these platforms in today's digital marketplace. One of the significant contributions of this study is the comparative analysis of case law from different jurisdictions concerning intermediary liability for copyright infringement. This cross-jurisdictional examination helps illustrate how courts in various countries address similar issues, offering insights into potential harmonization of legal standards and guiding principles for future legislation and litigation. The research identifies specific challenges faced by photographers and copyright holders, such as the difficulty in monitoring vast quantities of online content and enforcing rights across multiple jurisdictions. The article sheds light on the broader impact of copyright infringement on the photography industry. The research offers practical recommendations and strategies to address copyright infringement on e-commerce platforms. These include leveraging automated image recognition technologies, establishing clear guidelines and protocols for sellers, and implementing efficient mechanisms for reporting and removing infringing content.

The decision of the European Court of Human Rights and the issue of determining the content of evaluation features

Resolving controversial issues related to the content of evaluative features in the context of the judgments of the European Court of Human Rights is important for the development of legal science and practice, since increased integration within Europe requires national governments and judicial systems to pay increased attention to the practice of supranational bodies. The purpose of this study is to analyse the judgments of the European Court of Human Rights, aimed at determining the content of the evaluative features in the context of human rights. For this purpose, the author uses the methods of legal literature analysis, comparative analysis of case law from different countries, synthesis, comparison, and modelling, as well as logical and systematic approaches to the analysis of court decisions. The article establishes that the assessment criteria are an important tool for determining human rights violations and require an objective and proportionate approach. Attention is focused on the role of the European Court of Human Rights in ensuring a balance between freedom of expression and the protection of human rights. The author identifies the need to adapt concepts to digital environments and take into account new challenges. The author analyses the process of determining the evaluative features and demonstrates its significance for establishing the scope of human rights protection. The author identifies different approaches of the European Court of Justice to determining the content of evaluative features in human rights judgments. The emphasis is placed on the interpretation of such concepts as “adequacy”, “excessiveness” and “necessity” in the context of human rights restrictions. The author identifies changes in the court's approach to these concepts over time and changes in the social and political context. The study is important for an in-depth understanding of the interpretation of human rights by the European Court of Human Rights, as well as for the formation of a unified methodology for interpreting the evaluative features in the judgments of courts of different jurisdictions

Consent and the Protection of the Deceased’s Interests in Posthumous Reproduction

The phenomenon of posthumous reproduction (PR) is challenging traditional notions of family structure, composition and chronology; at the same time, it is posing a novel challenge to the discourse on posthumous harms and interests in terms of the deceased’s reproductive narrative. To some extent, these fundamental challenges are reflected in the jurisprudence on PR as courts around the world are increasingly confronted with disputes regarding the permissibility of PR. Engaging in a comparative case-law analysis I show that the formal requirement for the deceased’s explicit, prior consent (for the retrieval, if necessary, and use of his/her gametes) – the cornerstone of many legal frameworks governing PR – is increasingly disregarded or evaded. This trend compels a deeper inquiry into the role of consent apropos the regulation of PR. To do so, I explore the underlying philosophical questions vis-a-vis PR. Drawing on the Feinberg-Pitcher account of posthumous harms and interests, I argue that certain interests, including those relevant to PR, can persist after death, e.g. the fate of reproductive material, the treatment of dead bodies. Likewise, frustrating these interests can constitute harm to the ante-mortem person, and the threshold for justifying such harms is high. This argument is complemented by contemporary accounts of autonomy within bioethics that emphasize respect for individuals’ fundamental belief systems – these may encompass interests in the body and its (reproductive) materials after death. I conclude that this position is most accurately reflected in law through demanding formal and explicit prior consent, versus presumed, informal, inferred or no consent frameworks.

Separation from the Abducting Parent and the Best Interests of the Child: A Comparative Analysis of Case Law in Belgium, France and Switzerland

In international child abduction cases, two international legal frameworks interact with each other. On the one hand, the Hague Child Abduction Convention provides that the abducted child must be speedily taken back (unless an exception applies); which is seen as being in the best interests of the child in general. On the other hand, the UN Convention on the Rights of the Child provides that the best interests of the individual child must be a paramount consideration in all actions concerning him or her. The aim of this article is to examine how the case law of Belgium, France and Switzerland integrates the obligation of a speedy return and the obligation of safeguarding the individual child’s best interests. The article focuses on how judges determine the child’s best interests when assessing whether the separation between the child and the taking parent poses a grave risk for the child in the sense of Article 13.1.b Hague Child Abduction Convention. Looking at the analysed case law, we see an integrated approach: the courts of the chosen countries manage to take the best interests of the individual child into account during their consideration of the return proceedings and the grounds for refusal.

THE END OF AMNESTY OR REGIONAL OVERREACH? INTERPRETING THE EROSION OF SOUTH AMERICA’S AMNESTY LAWS

AbstractThe atrocious abuses committed under South America's dictators resulted in a wave of amnesties. Following transitions to democracy, challenges from victims and civil society unpicked several of these amnesties, leading to hundreds of perpetrators facing prosecution. These developments prompted far-reaching claims in academic literature and policy reports regarding the significance of the erosion of South America's amnesties for shaping international legal norms and policy preferences on amnesties within the region and beyond. This article draws on a comparative analysis of case law from the Inter-American Court of Human Rights and national courts as well as legislative changes to argue that there is a regional trend to move away from broad, unconditional amnesties enacted during or after dictatorial rule. However, it notes that this is not universal across the region, nor does it represent a rejection of all forms of amnesty. The article then tests the claims being made in the literature regarding the significance of the regional trend on the legality, durability and desirability of amnesties. It finds that there is little evidence to support claims that the regional developments are indicative of a broader normative shift. It concludes by identifying the risks posed by regional overreach.

A Comparative Case Law Analysis of John Doe and Anton Piller Orders

Successful protection of Intellectual Property Rights (IP Rights) depends on effective laws, proper judicial adjudication, and execution of judicial orders. In other words, all the three organs of the State, namely, Legislature, Judiciary and Executive have to be extremely alert in protecting and preserving IP Rights, particularly, the trans-border reputation. The 'John Doe’ order is used to describe an injunction sought against a person whose identity is not known at the time of the issuance of the order. It thus, enables an IP owner to serve notice and take action against anyone, whose identity is unknown and found to be infringing the IP Rights. In other words, the order does not specify any one defendant in particular. The John Doe order allows the plaintiff’s solicitor to search the premises and deliver up evidence of infringement of the rights of the plaintiff by the unknown Defendant (John Doe). More often than not, the John Doe order, also known as the ‘Ashok Kumar’ order includes provisions for an interim injunction. The ‘John Doe’ order also affords the trademark or copyright owner the possibility of curtailing the infringer’s future activity by means of an injunction, while depriving the infringer of his stock of counterfeit goods by means of a seizure of those goods.