Competent Jurisdiction Research Articles

Uncertainties in the First Limb of the Spiliada Test

Lord Goff formulated the first stage of his classic test in the Spiliada in the following terms: ‘the basic principle is that a stay will only be granted on the ground of forum non conveniens where the court is satisfied that there is some available forum, having competent jurisdiction, which is the appropriate forum for the trial of the action’ (emphasis added).

Pharmaceutical Pricing and Hatch–Waxman Reform: The Right Prescription

Pharmaceutical pricing in the USA has been habitually plagued by sizeable discrepancies between brand-name drugs and generic alternatives. Traditional notions of competition and free market enterprise fail to narrow the gap, since drugs cannot be sold in the USA unless they obtain regulatory approval from the US Food and Drug Administration (FDA). As a consequence of the legislation and administrative procedures governing market access for pharmaceuticals, generic drug manufacturers encounter a great deal of difficulty in challenging traditionally patent-protected brand-name drugs during the regulatory approval process. During the past two decades, via a series of legislative manoeuvres and statutory amendments (most notably the Hatch–Waxman Act), Congress has created a number of quid pro quos granting generics greater access to quick market entry while simultaneously protecting important intellectual property rights. In 2003, Congress amended Hatch–Waxman, in an attempt to close many of the statutory loopholes that had been exploited in ways unintended by the legislators to block generic pharmaceutical approval. The purpose of this paper is not specifically to critique the new legislation, but rather to suggest a different strategy. Instead of further complicating an already intricate and perplexing statutory scheme with myriad ways for ingenious patent experts to circumvent the intended purposes, the authors propose the following: (1) a repeal of unnecessary incentives; (2) a reassignment of esoteric issues of patentability and enforcement inherent in the determination of listability to the exclusive authority of the US Patent and Trademark Office; and (3) return of legitimate patent infringement disputes to courts of competent jurisdiction.

Non-Voted Ballots and Discrimination in Florida

Majority Report by the U.S. Commission on Civil Rights on the Presidential vote in Florida during the 2000 general election presents two types of empirical evidence that African-Americans were denied the right to vote. report concluded that, The Voting Rights Act prohibits both intentional discrimination and results discrimination. It is within the jurisdictional province of the Justice Department to pursue and a court of competent jurisdiction to decide whether the facts prove or disprove illegal discrimination under either standard. To reach their conclusion that discrimination had occurred, the majority examined the impact of race on spoiled (or non-voted) ballot rates as well as the impact of race on the exclusion from voter eligibility lists because of past felony criminal records. They relied on empirical work regarding non-voted ballots, relying solely from cross county regressions or correlations using data from 2000 alone. evidence that African-Americans are erroneously placed on the ineligible list at higher rates than other racial groups is based upon a simple comparison of means. This paper evaluates the Majority Report and finds little evidence of any type of discrimination against African-Americans in voting.

Attractive Hazard: Entrapment or Forensic Tool?

According to Lance Spitzner in his book Honeypots: Tracking Hackers!,1 a honeypot is “a security resource [whose] value lies in being probed, attacked or compromised.”2 Thus, whether for research or production,3 an organization uses a honeypot as an intentional exposure available for exploitation. To be effective, the honeypot must be visible and attractive. The use of a honeypot to catch a hacker raises several ethical issues (which may also prove to be legal challenges). In this column I discuss some of these issues and the design considerations to position your enterprise to defend the use of a honeypot. While both legal and ethical issues are discussed, I am not an attorney (and do not even play one on TV). Before acting on any legal matter, obtain the advice of an attorney of competent jurisdiction.

La ley aplicable y jurisdicción competente en casos de responsabilidad civil por contaminación transfronteriza

El autor examina diversos tipos de reglamentación que pueden ser incluidos en el proyecto de convención sobre responsabilidad civil por daños transfronterizos. Primero explica las razones por las que el proyecto se incluyó en la Conferencia Interamericana de Derecho Internacional Privado VI que se celebrará en noviembre de 2001. La materia involucra temas como responsabilidad extracontractual, el derecho aplicable a la contaminación transfronteriza, y la jurisdicción competente sobre daños y la compensación debida. Enseguida, se discuten diversas opciones para la determinación del foro. Aún cuando el proyecto de convención constituye una base para la regulación de la materia, otros asuntos podrían incluirse en ella, como la posibilidad de acciones colectivas, y la conveniencia de incluir un seguro para el pago de daños derivados de contaminación ambiental.

Policies Underlying the Enforcement of Foreign Commercial Judgments

There is a tendency to divide legal development into historical stages, to say how wrong and befuddled we were in the past and to describe how we came finally to see the light. This inclination is particularly evident in the area of enforcement of judgments given by courts of foreign countries (in this article the term “foreign judgments” is confined to such judgments). Before the turn of this century, the main bases for enforcement were the concept of “comity” and the doctrine of “sovereignty”. These were criticised by later generations of lawyers who were uncomfortable with the vagueness of the terms and who could not agree on what they meant and how they should be used. In modern times positivist bases have been substituted in their place. So we had the “vested rights” theory, which did not last long as it was soon overshadowed by the “obligation” rationalisation. Most writers accept and, in their account of the theory of the law in this area, do not attempt to go beyond these words of Blackburn J: “The judgment of a court of competent jurisdiction over the defendant imposes a duty or obligation on him to pay the sum for which judgment is given, which the courts in [the country of enforcement] are bound to enforce.”

Regulation of Subsurface Disposal in Texas: ABSTRACT

An injection well is defined in the Texas Injection Well Act as an artificial excavation made for the purpose of injecting or disposing of industrial and municipal waste into subsurface strata. Industrial and municipal waste is defined as any liquid, gaseous, solid, or other waste substance which might be expected to cause pollution of fresh water. Before any person may begin the drilling of an injection well or converting any existing well into an injection well for the purpose of disposing of industrial or municipal waste, a permit must be obtained from the Texas Water Quality Board, and a fee of $25 must accompany the application. A permit for drilling of an injection well to be utilized for disposal of waste arising from the production of oil or gas must be obtained from the Railroad Commission of Texas. An application to the Board for a permit or waste-control order must be accompanied by a letter from the Railroad Commission of Texas stating that the well will not endanger any oil or gas resources. The Water Quality Board also is required to send copies of each application and subsequent waste-control order to the Texas Water Development Board, the Texas State Department of Health, and the Texas Water Well Drillers Board. The Act does not require a public hearing on the application, but the Board may hold public hearings if it is deemed in the public interest. The Board chose to hold public hearing and has adopted rules and regulations outlining the procedure. The technical staff of the Board reviews each application for completeness, and assures that the proposed project is properly designed and that the reservoir is capable of receiving the waste without undue pressure increase. The staff makes recommendations for approval or denial of the waste-control order. A waste-control order to drill an injection well may be granted by the Water Quality Board when it has been determined that this method of disposal has less effect on the environment than alternate methods of disposal, the well will not impair any existing rights, and that both groundwater and surface waters can be protected from pollution. The waste-control order contains provisions and requirements deemed necessary to protect fresh water. The staff of the Board observes certain phases of the well completion, certifies the project upon completion, and conducts periodic inspections. The permittee must submit periodic reports on the wellhead injection pressure, and the volume and quality of the waste injected. Penalties are provided, not to exceed $1,000 for each day of noncompliance with provisions of the permit. In cases of noncompliance, action may be brought in any court of competent jurisdiction, and at the request of the Texas Water Quality Board, the Attorney General of Texas may institute and conduct a suit in the name of the State of Texas. End_of_Article - Last_Page 2086------------

Bhagwan Shankar v. Rajarum Bapu.

State Succession — Effect of — On Judgments of Courts — Merger of States — Merger of Part-Sovereign State Within a Union which is a Full Sovereign — India — Merger of Akalkot and Bombay — Effect of Judgments of Court Not of Competent Jurisdiction — Sections 13 and 20 of Indian Code of Civil Procedure.

Administrative Contracts and Monetary Fluctuations in France, Belgium and Italy

RésuméPréambule.I. — Le concept de contrat administratif en général.II. — Le contrat administratif au regard des variations monétaires.III. — Les conceptions de la doctrine et de la jurisprudence françaises, belges et italiennes.IV. — Conclusion.Résuméby René WarlomontThe author first establishes, both in history and in legal definitions, the difference between « public law » (« droit public ») and « private law » (« droit privé »), an essential distinction on which is based the entire legal system governing administrative contracts. M. WARLOMONT then points out that the administrative contract became a concept in law in 1872, the very year when the « Conseil d'Etat » was established. A gradual evolution towards a complete administrative status has taken place, but the name « contract » should be retained, if only because of the necessary agreement of a private person.In Belgium, the evolution has been different. The « Conseil d'Etat » having been abolished in 1830, ordinary Courts are competent in all cases pertaining to such contracts, and even the newly (1946) established « Conseil d'Etat » has no jurisdiction in such matters. It is an accepted principle, however, that « the Administration and the private person cannot be considered as equal in the abstract in matters of interests they are pursuing ».In Italy, the « Consiglio di Stato » has no jurisdiction over differences pertaining to administrative contracts. The evolution has been parallel to that in Belgium, but a certain tendency towards adopting principles followed in France has been noticeable for some time.The problem of compensation for a decrease of value of currency as a result of monetary fluctuations has, in the case of administrative contracts, received no clear solution. In France, the principle of compensation has been accepted by the Conseil d'Etat, but there is no written provision. The competent jurisdiction bases its rulings on the principles of unforeseeable occurrence (« imprévision »), royal deed (« fait du Prince ») or force of circumstances (« force majeure »). In Belgium, various means have been devised to supplement the legal provisions, in view of the fact that these include no possibility of such compensation. The competent jurisdictions have resorted to variable « parameters » and to the principle of « bona fides ».The Italian legislation, however, includes precise provisions, and stipulates that compensation may be applied for as soon as the average cost of living has fluctuated by more than 10 % or 20 %, according to the case.Mr. WARLOMONT further defines the several attitudes of the three legislations and leads to the conclusion that the specific problem of compensation is but part of the general question of private v. public law.

Loss of Citizenship and Civil Rights for Conviction of Crime

An erroneous impression appears to exist among certain people in the United States that if a person is convicted of a crime by a court of competent jurisdiction, he immediately and automatically loses his citizenship. It is apparently believed that when a citizen is convicted of a felony or a crime involving moral turpitude in either a state or national court, the person is no longer a citizen, and can never enjoy any of the rights or privileges of American citizenship for the rest of his natural life. A search of standard textbooks on American government will disclose that if the matter of the loss of citizenship or of civil rights for the conviction of crime is discussed at all, the author or authors will dismiss the topic by making the statement that citizens of the United States do not lose their citizenship for the conviction of crime; and the authors usually add that this fact is contrary to popular impression.The Fourteenth Amendment to the Constitution defines citizenship by stating that all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the state in which they reside. The procedure required for a person to become a citizen by naturalization is one for Congress to determine by law, and Congress has passed legislation governing it. On the other hand, the Constitution does not contain a statement providing for the loss of citizenship or expatriation in any form, whether by voluntary or involuntary act on the part of the citizen.

Federal Courts. Suits against a State. Consent of State to Suit in "Any Court of Competent Jurisdiction" Held Not Consent to Suit in Federal Courts

Federal Courts. Suits against a State. Consent of State to Suit in "Any Court of Competent Jurisdiction" Held Not Consent to Suit in Federal Courts

Bankruptcy. Corporate Reorganization. State Court Applies Its Own Rule of Priorities Where Reorganization Court Delegated the Question to a "Court of Competent Jurisdiction"

Bankruptcy. Corporate Reorganization. State Court Applies Its Own Rule of Priorities Where Reorganization Court Delegated the Question to a "Court of Competent Jurisdiction"

Economic Aspects of Reparation Awards by the Interstate Commerce Commission

The extensive literature dealing with various aspects of railway rate regulation contains singularly few discussions, so far as the writer is aware, of the administration by the Interstate Commerce Commission of reparation for past maladjustments in rates.' While this task is merely incidental to the main purposes of rate regulation and has declined in importance relative to other aspects of the Commission's work it has increased greatly in absolute magnitude and poses questions of public policy which possibly deserve more consideration than they have received. The present paper does not undertake to discuss the reparation problem as a whole but is confined to a consideration of the economic justification of the prevailing legal doctrines concerning the kind and amount of proof of injury necessary to justify a reparation. A brief summary of the statutory provisions governing reparation may be convenient. Section 8 of the Interstate Commerce Act establishes the liability of carriers for the full amount of damages resulting from violations of the Act. Section 9 provides that claims for reparation may be made either before the Commission or before a court of competent jurisdiction, but despite this statutory alternative it has been settled by judicial interpretation that resort must be had first to the Commission except where the claim is based upon the performance of an act concretely defined and prohibited by the statute, such as a departure from the published tariffs.2 Awards of reparation are made chiefly on the basis of the latter offense and for rates found unreasonable or unjustly discriminatory under the first four sections of the Act. Section i6 requires the Commission, after hearing, to determine whether a complainant is entitled to damages, and if so, to order

The Enforcement of Foreign Decrees for Alimony

In a court of competent jurisdiction of a state in which a husband and wife are resident, the wife successfully sues the husband for a divorce or separation and alimony. The decree awards her alimony for the support of herself and children, if there be any, either in the form of a lump sum or installment payments. To avoid the sanction of this court, the husband, leaving no appreciable assets behind him, flees to a second state. The wife, in dire need, and no longer possessing an effective remedy in the state where the divorce was granted, attempts in the second state to enforce the decree providing for support. Or the wife, having obtained a decree for divorce or separation and alimony in a state where she was then resident, returns to the state of her former residence and seeks to obtain payments under that decree.