Court Of Appeal Research Articles

A Verdict Overturned: Are We at Our Wit's End?

Despite the 2008 Mental Health Parity and Addiction Equity Act, access to psychotherapy through health insurance is quite limited. The 2019 landmark verdict in Wit v. United Behavioral Health offered hope of change. This column describes the recent overturning of the verdict in Wit v. United Behavioral Health, efforts by the Plaintiffs' attorneys to pursue a review by the entire 29-member United States Court of Appeals for the Ninth Circuit of the puzzling decision apparently based on a misunderstanding of the arguments of the case, and steps forward to implement the mental health parity law.

Building in the Light of the Current Cases of the Judiciary

Muhdesat, taşınmaz üzerinde kalıcı olmak üzere bulunan yapı veya bitkilerdir. Bu sebeple, muhdesat hukukî niteliği itibarıyla bütünleyici parçadır. Bu niteliğin kazanılmasıyla birlikte muhdesat üzerinde önceki malzeme veya bitki sahibinin artık bir mülkiyet hakkından söz edilemez; taşınmaz üzerindeki aynî hak muhdesatı da kapsar. Bununla birlikte, muhdesattan dolayı hem hak sahibi hem de taşınmaz maliki birtakım istemlerde bulunabilir. Meselâ, muhdesat üzerinde alacak hakkına sahip olan taraf bunun tespiti veya sebepsiz zenginleşmenin iadesi amacıyla dava açabilir. Aynı şekilde, taşınmaz maliki de özellikle haksız yapıya ilişkin hükümler çerçevesinde tazminat, yıkım (kal), mülkiyetin devri gibi bazı hakları ileri sürebilir. Bu itibarla, muhdesat uygulamada sıkça karşılaşılan bir hukukî müessesedir. Dolayısıyla, uyuşmazlıkların zenginliği ve çeşitliliği konunun tercih edilmesinde etkili olmuştur. Üstelik, Yargıtay’ın eleştiriye açık kararları da ayrıca değerlendirilmiştir. Bu kapsamda, önemli bir misal olarak Yüksek Mahkeme’nin muhdesatın tespiti davasının istisnaî olduğunu, ancak bazı hallerde açılabileceğini, aksi takdirde hukukî yarar şartının yokluğu sebebiyle reddinin gerektiğini kabul eden içtihadı isabetli değildir.

James Obergefell Honored at John Fryer Anniversary Event

James Obergefell Honored at John Fryer Anniversary Event

Prison Policy from the “Bottom Up”

Prison Policy from the “Bottom Up”

항해용선계약상 체선료 청구와 손해배상의 범위

The purpose of this paper is to introduce and analyze the duty of the demurrage and the scope of damages in the K Line Pte Limited v. Priminds Shipping (HK) Co Limited (The Eternal Bliss) [2021] EWCA Civ 1712. In The Eternal Bliss, the Court of Appeal has ruled that, unless otherwise provided in the charterparty, demurrage at the agreed rate is the only remedy available to an owner in the event of losses arising from a voyage charterer’s failure to complete loading and/or discharging of cargo within the permitted laytime. The Court of Appeal acknowledged that demurrage is an exclusive remedy for all consequences of a failure to complete cargo operations within laytime. This paper studies meaning, nature, application, requirements of the demurrage claim and the scope of damages in voyge charter by analyzing common law theories and especially The Eternal Bliss court decision.

Expanding the jurisdiction of the jury: problems of stability of legislation and legal technology

The jury has established itself as a fair trial. Such justice is explained by the legal status of the jury trial, because in essence it is a kind of intermediate position between the government and the people. The independence of jurors is the main difference between a jury trial and a professional court. Therefore, a jury trial is necessary in a democratic society. There is a jury trial in Kazakhstan, but it is not in demand. The statistics provided on the consideration of cases by courts with the participation of jurors shows a significant reduction in such cases. There is a need to expand the category of cases considered by jury courts. In the Address to the People of Kazakhstan «New Kazakhstan: the path of renewal and modernization» on March 16, 2022, the President of the Republic of Kazakhstan spoke about the expediency of expanding the category of cases involving a jury trial. In order to increase the category of cases considered by courts with the participation of jurors, it is necessary to solve several legal problems. The first problem is the problem of the stability of the criminal procedure legislation, through the improvement of the norms governing the institution of jury trial. Such an approach is necessary in order to comply with legal techniques, since the simplicity and accessibility of the presentation of norms will avoid legal conflicts and will have a positive impact on law enforcement practice. The author's position of the article-by-article determination of the jurisdiction of the cases of the jury is presented. The second legal problem is the duplication of norms, which is found in articles 52, 321, 631 of the Criminal Procedure Code of the Republic of Kazakhstan. The justification for excluding such duplication is presented, since it does not correspond to legal technique and clutters up the CPC of the Republic of Kazakhstan. The third problem is the review of court decisions with the participation of jurors. The current practice of reviewing court decisions generates citizens' distrust of justice. The author's vision of reviewing such decisions in the court of appeal in an expanded jury is presented.

Promoting Corporate Extraterritorial Sustainable Responsibility through the Lens of Social Licence to Operate

Mandatory corporate extraterritorial responsibilities to promote environmental, social and human rights awareness and recordkeeping have been criticised as green-washing, despite the progressive intent of such attempts. This article conducts an in-depth investigation of extraterritorial responsibility through the lens of the social licence to operate (SLO), using a hybrid methodology involving doctrinal, conceptual, black letter, interdisciplinary and socio-legal sources. We aim to give an overview of decided cases referred to the Supreme Court by the Court of Appeal, in the hope of offering academic groundwork for legalising corporate extraterritorial responsibility in the context of global value chains with the participation of multinational enterprises and various stakeholders, including those in very vulnerable positions in developing or the least developed countries. Previous research on the notion of the SLO has tended to focus on one particular industry, based on the assumption that an SLO is more relevant in corporate social responsibility (CSR)-sensitive sectors. This article will change the focus and aim to answer the question of whether building and maintaining SLOs can help companies to acquire the social legitimacy to fulfil extraterritorial social responsibility. We link the goals, ideals and breadth of SLOs to those of extraterritorial responsibility in order to provide supplementary support for legislators to achieve better compliance and risk management. We conclude that the benefits of seeking an SLO are that they can help to inform progressive extraterritorial legislative attempts, promote board accountability, and mitigate environmental and social risks.

Experts, who needs them? Judicial inconsistency in instruction, admission and interpretation of forensic expertise.

Science is knowledge. Continuing study adds to that knowledge, hence science is in perpetual flux. The law courts too are in flux but change in legal opinion does not necessarily keep pace with that of scientific opinion and the appeal court's concern for finality may override the correction of injustice through progress in understanding. From its casework, the charity Inside Justice has identified failures in the instruction of experts pre-trial and inconsistencies in the admission and evaluation of expert evidence post-trial, illustrated here by half a dozen case studies.

Glosa do wyroku Sądu Apelacyjnego w Gdańsku z dnia 15 kwietnia 2021 r., II AKa 219/20

The gloss is an analysis of judicial practice in terms of the possibility and advisability of reaching for the institution under Art. 440 of the Code of Criminal Procedure by the appellate court. The author criticizes the judgment of the Court of Appeal in Gdańsk, because the change of the judgment made by this court raises doubts as to the legal basis used and does not contain arguments justifying the belief that the failure of the court of first instance led to a state of gross injustice of the judgment. The publication postulates that a change of a ruling due to gross injustice should occur exceptionally, because the institution under Art. 440 of the Code of Criminal Procedure it is based on vague and judging criteria and cannot be abused.

判決의 片面的 對世效와 必須的 共同訴訟-대법원 2021. 7. 22. 선고 2020다284977 전원합의체 판결

In this paper, I examined whether co-litigation, such as administrative litigation, household litigation, and company-related litigation applied or applied mutatis mutandis to the text of Article 190 of the Commercial Act, constitutes a (similar) indispensable co-litigation, and drew a conclusion to disagree with it. In addition, I considered the issue of “the status of an indispensable co-litigant, not appealed or not been filed an appeal by the counter party in the procedure of appeal” which is one of the old points of controversy over indispensable co-litigation, and presented my opinion. The essence of my opinion is that if the provisions of Article 67 (1) and (2) of the Civil Procedure Act are interpreted and applied as they are, such co-litigants acquire the status of the appellant or the appellee, so they can make all necessary arguments in the proceedings of the Court of Appeal.

미국 해상보험법상 연방법과 주법의 적용에 대한 구조적 문제점에 관한 고찰

Purpose : The purpose of this study analyses the structural issues in the application of Federal and State laws in the US Marine Insurance Law. Research design, data and methodology : The methodology is a typical case law analysis dealing with the issues surrounding the selection of the applicable law for marine insurance contracts as the issues implied by the US Marine Insurance Law. Results : In Travelers v. Ocean Reef, the 11th Circuit Federal Court of Appeals stated that only the Supreme Court had the privilege of overturning its decision and, unlike some commentators, could not dismiss Wilburn Boat on the grounds that it might disagree with Wilburn Boat. In Travelers v. Ocean Reef, will prove fascinating enough to tell you what the Supreme Court thinks about Wilburn Boat today. Conclusions : Considering the possibility that the law of the United States, which is popularly referred to as a major power in litigation, will affect Korea's trade officials, it is even more so. In addition, although the problem of the marine insurance law in the United States is recognized as a domestic problem, it should be recognized that the effect of opacity of the law and the diversification of legal principles is international.

Delimitation of Offences under Article 243 and Article 239(1) of the Polish Criminal Code – Considerations in the Context of the Judgment of the Court of Appeal in Szczecin of 12 January 2016, II AKA 151/15

The paper addresses the problem of delineating the offence of facilitating the escape of a person deprived of liberty on the basis of a court decision or a legal order issued by another state authority (Article 243 of the Criminal Code) and the offence of assistance in avoiding criminal liability (Article 239(1) of the Criminal Code). The author claims that assistance provided after the escape should be considered an offence under Article 239(1) of the Criminal Code. He also draws attention to the problems occurring in practice with regard to the differentiation of these types of offences. His analysis also leads him to formulate postulates for the law as it should stand (de lege ferenda).

La inadmisibilidad del recurso de apelación

The current validity of article 423 section 3 of the NCPP of 2004 is questioned; and, the importance of its reformulation. Reformulating the aforementioned normative precept is due to the importance of the precautionary materialization that the State possesses with respect to the judicial control of the sentence. We accept the validity of a restricted appeal system; however, we consider that this position is only rigorously applicable in specific cases in which the validity, certainty or credibility of the personal evidence must be determined or also in the face of questions related to the foundability of the facts invoked in the appealed judgment. At the national level, the strict application of the aforementioned legal device imports the transcendental loss of judicial control over the A Quo, under unfounded criteria of respect for the principle of immediacy, orality and contradiction, there is a risk of consenting to illegal judicial pronouncements. The need for the appellant to be physically present cannot constitute a limitation to the duty of control exercised by the Superior Court of Appeal over the errors in iudicando; therefore, its current validity constitutes a way of destabilizing the Criminal Justice System.

Incorporated Trustees of Digital Rights Lawyers Initiative & Ors v National Identity Management Commission: A Milestone towards a Human Right-Based Approach to Data Protection in Nigeria

On 24 September 2021 the Court of Appeal (CA) delivered judgment in Incorporated Trustees of Digital Rights Lawyers Initiative & Ors v National Identity Management Commission (ITDRLI& ORS v NIMC or the Case), in which the CA resolved the conflict on the status of data protection rights in Nigeria. Prior to the decision in the Case, there were conflicting decisions of high courts on whether data protection rights qualified as fundamental right to privacy in section 37 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) (CFRN). The decision of the CA in the Case is that the fundamental right to privacy under section 37 of the CFRN includes data protection rights. This decision of the CA is a milestone in data protection in Nigeria, even though it is relatively late as conversations at the global stage have progressed beyond recognition of data protection rights as part of right to privacy, to advocating for the creation of data protection right, independent of the right to privacy. In this review, we present the facts, arguments, and decision in the Case, summarise previous conflicting decisions on the point, and make our comments on the decision of the CA in the Case, and the global trends of human right-based approach to data protection. We end the review with a conclusion.

"How to Cope with Counter-Performance in Public Administration. The Case of Freedom of Religion or Belief During the Pandemic"

"The Covid-19 pandemic crisis serves as a genuine natural experiment for societies worldwide, as the health-related crisis allowed governments to implement extreme measures that impacted people’s rights and freedoms, challenging the boundaries of democracy and rule of law. In the context of religious life, Romania was pointed by the OSCE as being one of the countries that have opted for the harshest measures to restrict religious life since the beginning of the pandemic. In this paper we present a case study of Romania’s restrictions imposed on religious life during the Covid-19 crisis, using secondary data analysis stemming from the UN, the OSCE, the Court of Appeal of Bucharest etc., as a framework to objectively analyze how the government should act regarding religious life, by enforcing the principles enshrined by the International Covenant on Civil and Political Rights, Art. no. 18. Our main findings suggest that, in Romania, during the pandemic, the restrictions imposed on religious life were politically bargained by the government rather than being mediated through national law and international standards and commitments on Freedom of Religion or Belief and based on the democratic principles of the rule of law."

THE ADMISSIBILITY OF CRIMINAL CONVICTIONS IN CIVIL PROCEEDINGS

Admissibility of criminal convictions as evidence in criminal proceedings has become a controversial decision of the Court of Appeal of United Kingdom in the case of Hollington v Hewthorn (1943). Since then several follow-up decisions has either adopted this decision and some jurisdictions have rejected it. This article assesses the effect of this decision in four jurisdictions, i.e UK, Australia, Canada and Malaysia. It is found that UK, Australia and Canada have since moved away from this judgement by amendment to their respective Evidence Acts. However, this is not so in the case of Malaysia. This paper recommends that Malaysia revisit section 43 of the Evidence Act 1950 with a view to amend this section to be on par with UK, Australia and Canada.

Rannsókn á tengslum kynferðis og aldurs dómara og lögmanna við úrslit dómsmála í héraði

Hér á landi hefur ekki verið rannsakað hvort og þá hvaða tengsl séu á milli kynferðis og aldurs dómara og málflytjenda annars vegar og niðurstaðna dómsúrlausna hins vegar. Rannsóknin, sem er þverfræðileg á sviði félagsfræði og lögfræði, laut að því að greina upplýsingar um kynferði og aldur dómara og málflytjenda í þeim dómsúrlausnum í einkamálum, sem kærðar hafa verið eða áfrýjað til Hæstaréttar og Landsréttar, á tíu ára tímabili. Rannsakað var hvort tengsl væru á milli þessara þátta og úrslita dómsmálanna. Rannsóknin gefur til kynna að kyn lögmanna hafi þýðingu, óháð kyni dómara, og að kvenkyns málflytjendur til sóknar og varnar auki líkur á að mál falli umbjóðendum þeirra í vil. Aldur dómara virðist jafnframt hafa þýðingu fyrir úrslit mála þannig að eldri dómarar (50 ára og eldri) séu líklegri til að dæma varnaraðila í vil, óháð öðrum þáttum. Enga samvirkni á milli kyns dómara og lögmanna má á hinn bóginn finna í gögnunum sem rannsökuð voru. Það er von okkar að rannsóknarniðurstöðurnar gagnist umræðunni um starfsemi dómstóla og jafnrétti og hvetji til frekari rannsókna á því sviði.

Problems of patenting inventions created using artificial intelligence: doctrine and practice (р. 1)

Keywords: intellectual property, artificial intelligence, inventor, software, examination,patent, digital transformation
 The dynamics of development of theworld market of artificial intelligence (AI), patent activity in this field, problematic issuesarising in connection with the patenting of inventions created using AI are studied.Aspects of doctrine formation and policy development in the field of intellectualproperty (IP) and AI are considered. Features of examination of patentability of inventionscreated with the use of AI in different jurisdictions (EPO, USA, Germany,China), foreign legislation, doctrinal positions and case law in this field are analyzed.According to the analysis of the Artificial Inventor project, DABUS applications indicatingthe AI system as the inventor, submitted in 17 jurisdictions, were mostly rejectedat the level of IP offices and as a result of court appeals. In general, the applicantfailed to persuade the IP courts and agencies with his arguments, despite differencesin national law and patent systems. The main provisions of the draft law «OnAmendments to the Law of Ukraine «On Protection of Rights to Inventions and UtilityModels» on the regulation of relations arising in relation to inventions and utilitymodels created using artificial intelligence» are considered. It is concluded that theLaw on the Protection of Rights to Inventions and Utility Models excludes computerprograms from patented objects. Their minority is stated in the total number of filedapplications and issued patents. Between 1980 and 2018, only 740 such applicationswere published (1.26% of the total). The rules for compiling, submitting and reviewingan application for an invention (utility model) in Ukraine are outdated and do not reflectaspects of AI. Only a comprehensive approach (changes in legislation and improvementof expertise) will solve this problem.

WARNER MUSIC UK LTD v TUNEIN INC

Abstract H1 Copyright — Infringement — Sound recordings — Internet radio services — Hyperlinks — Communication to the public — Whether communication to the public in the UK — Targeting — Consent — Whether the UK public was a new public — Availability of a recording facility — Liability of users — Time shifting — Liability of station providers — Authorisation — Joint liability — Common design — Appeal to Court of Appeal

The legal restrictions of administrative courts requested a claim, appeal or cassation complaint in the context of ensuring the efficiency of justice

The article is devoted to defining the legal restrictions of consideration by courts of administrative claims, appeals or cassation appeals in order to comply with the requirements of the efficiency of justice in administrative proceedings. It is substantiated that the issue of ensuring the effectiveness of judicial protection of the rights, freedoms and interests of a person in administrative proceedings is directly related to the possibility of the court to apply the most effective way of protection in its own circumstances. the rights of the plaintiff (complainant).
 The author reveals the content of the principle of official clarification of the circumstances of the case and proved that this principle requires the administrative court to be active, as a general rule, to assist the party (plaintiff), in particular, to help determine the legal basis of the claim, - determining the most effective way to protect the rights, freedoms and interests of the individual. It has been argued that the effectiveness of the litigation requires the court to clarify a number of issues related to the subject of judicial protection and to assess the compliance of the plaintiff’s chosen legal basis for the claim.
 Based on the analysis of the case law of the Supreme Court in administrative proceedings and the case law of the European Court of Human Rights, the grounds and conditions under which the administrative court may go beyond the requirements of a statement of claim, appeal or cassation are determined. It is substantiated that the court can independently determine the legal norm that must be applied to resolve the dispute, even in respect of which the parties are wrong. The content of the principle of “jura novit curia” (“the court knows the laws”) is studied and it is proved that this principle means that the plaintiff’s specific legal norm to substantiate the claim is not decisive in deciding which law to follow.