Court Finds Research Articles

The Relationship between the International Criminal Court and its Host State: The Impact on Human Rights

AbstractWhen an international criminal tribunal establishes its headquarters in a state, its legal relationship with that state must be carved out. This legal relationship has the potential to exclude the applicability of human rights protection by curtailing the host state's jurisdiction in parts of its territory. Despite this, there is little clarity as to when when such curtailment should arise. This problem is illustrated by the situation regarding witnesses at the International Criminal Court, which has recently been the subject of decisions of the Hague District Court and of the European Court of Human Rights. These two courts disagree on the threshold at which the human rights issues engaged by the situation are brought under the jurisdiction of the Netherlands. This article submits that the European Court in Djokaba Lambi Longa v. The Netherlands set the threshold for jurisdiction under the Convention too high. In applying easily distinguishable previous case law, and failing to take into account all relevant facts, the Court's finding of inadmissibility is unconvincing. The Dutch Court, on the other hand, took a broader approach from which the European Court of Human Rights could learn. Ultimately the two decisions give contrasting interpretations of the relationship between the ICC and its host state, which could have wider ramifications.

Human Rights Beyond Borders at the World Court: The Significance of the International Court of Justice's Jurisprudence on the Extraterritorial Application of International Human Rights Law Treaties

This article uses the case study of the question of whether human rights treaty law applies extraterritorially as a means of exploring the general theme of the value of the International Court of Justice's involvement in human rights, when compared to such involvement by specialist human rights bodies. The Court's express pronouncements on the issue, in the Wall Advisory Opinion, the DRC v. Uganda judgment, and the Provisional Measures Order in Georgia v. Russia, as well as an earlier more general statement in the Namibia Advisory Opinion, are compared to determinations on the issue by specialist courts and tribunals. The article begins by setting out the broader historical context of the ICJ's involvement in human rights issues. It then analyses the different ways in which this involvement can be critically appraised, in the process making the case for the focus adopted herein, on a comparison between the role of the Court and that of specialist human rights tribunals on issues of meaning/interpretation rather than application/enforcement, and, within this, on comparative analysis concerned with the generalist/specialist distinction itself rather than the relative merits of positions taken on the substantive law. Such a focus is then deployed through a detailed critical evaluation of the Court's statements in the decisions indicated. Finally, the article summarizes the significance of the Court's determinations on the extraterritorial application of human rights law, and the broader relevance of these determinations for understanding the role of the ICJ in the field of human rights more generally.

Portielje: Bar Remains High for Rebutting Parental Liability Presumption

In Portielje, the Court of Justice overrules the General Court's (GC) finding that Portielje should escape liability because (i) it is not an undertaking itself, (ii) it successfully rebutted the parental liability presumption.

The Role of Administrative and Implementing Law Reforms in Public Administration and Cultural Heritage in Albania

The judicial power is one of the important fields of the legal state. As stated in the Albanian constitution, one basic principle is: equality and control between governments. Our paper research will analyze the justice reforms in Albania, will analyze bailiff organizational management (private or state form).This paper identifies and addresses of the important factors underlying of the, bailiff office in Albania and changes in the form of organization, under the administrative and implementing reforms in law. The paper also introduces with the changes in national law, private or state organizational form. This is done in order to seek an independent and impartial tribunal's or court's determination as to whether one's legal rights and obligations are being infringed, and if so, to obtain appropriate compensation and remedy. Civil litigation should be distinguished from criminal litigation. The main difference is that civil litigation is normally undertaken by an individual to seek monetary compensation, to recover properties, or to enforce obligations, while the criminal litigation is instituted in the name of the Government (i.e. the Vlore region Special Administrative Region during 2009-2011years) to suppress crime and to punish criminals. DOI: 10.5901/mjss.2013.v4n9p82

Liability for the rating and sale of structured credit products: Australian cases and their (much) wider implications

In late 2012, the Federal Court of Australia handed down first-instance judgments in two cases, Wingecarribee and Bathurst, involving claims brought by the purchasers of complex structured credit products which subsequently collapsed in value during the widespread dislocation in the global market for such products. Both of the judgments are long (1,459 pages for Bathurst and 450 pages for Wingecarribee) and address in considerable detail a number of important questions which will be of great interest to market participants who sell, structure or issue credit ratings for complex structured credit products. The purpose of this article is to summarise the key features of both judgments before considering three particular issues in greater depth to provide, from afar, the perspective of an English litigator on whether the findings might be replicated in the English courts. Those aspects are: the court's finding in Bathurst that the rating agency owes a duty of care to investors in complex structured credit products; the meaning attributed by the court to a credit rating when deployed by parties other than the rating agency; and the approach adopted by the courts in determining the existence of advisory and fiduciary duties.

Deprivation of Liberty: Has the European Court of Human Rights Recognised a ‘Public Safety’ Exception?

The European Court of Human Rights held in Austin & Others v The United Kingdom that the police confinement of a crowd of protestors for up to seven hours, or 'kettling', did not constitute a deprivation of liberty in violation of Article 5 of the European Convention of Human Rights. Austin was the first time the Court considered the application of Article 5 to the practice of kettling. The Court's previous Article 5 jurisprudence demonstrates that when analysing whether an individual has been unlawfully deprived of his or her liberty, the Court will consider the type of measure, its duration, its effects on the individual, and the manner of implementation of the restrictive measure. In Austin , the Court introduced a new factor in this analysis - the context in which the measure is imposed. This article examines the Court's deprivation of liberty jurisprudence, as well as the Article 5 exceptions to the prohibition of deprivation of liberty. Finally, the Court's finding in Austin is analysed to determine whether it now recognises a 'public safety exception' to Article 5.

Indirect discrimination in the case-law of the European Court of human right

The European Court of Human Rights has extended a scope of applicability of Article 14 of the European Convention on Human Rights to indirect discrimination in recent years. The change has happened in a context of turning attention in the Council of Europe and the European Union to the protection of particularly vulnerable groups. The Court has defined its concept of indirect discrimination as a general policy or measure which is apparently neutral but has disproportionately prejudicial effects on members of particularly vulnerable groups. The Court's finding on indirect discrimination in cases where discrimination was based on a language criterion and affecting exclusively Roma children requires an investigation of the definition.

Likelihood of confusion and the importance of clear and precise pleadings

The General Court's finding of similarity between BÜRGER and Bürgerbräu highlights the nuanced assessment of a likelihood of confusion in Community trade mark litigation.

Long-Term Care Reforms Live On With Court Ruling

Long-Term Care Reforms Live On With Court Ruling

Supreme Court Decides Case on the Application of Danish Law to an Advancement from a UK Trust

The Danish Supreme Court recently decided a case concerning the application of Danish tax laws to an “advancement” from an English trust. The author, who represented the taxpayer before the Eastern High Court and the Supreme Court, outlines the case in detail and comments on the court's findings.

Sanofi-Aventis et al. v. Apotex Inc. et al.: The one hundred eight million dollar question

In Sanofi-Aventis et al. v. Apotex, Inc. et al., 659 F.3d 1171 (Fed. Cir. 2011), the Federal Circuit reversed a lower court's grant of prejudgment interest to Sanofi in view of a settlement agreement between the parties, affirmed the lower court's determination that Canadian-based Apotex Inc. was jointly and severally liable with American-based Apotex Corp. for all damages and denied a motion of Apotex Inc. and Apotex Corp. for leave to amend to add an affirmative defense of patent misuse and a counterclaim for breach of contract. Regarding the denial of prejudgment interest in the amount of $107,930,857, the Federal Circuit found that the term “actual damages” in the settlement agreement included all the damages to which Sanofi was entitled. This decision, accordingly, highlights the importance of drafting carefully crafted settlement agreements.

The Botswana-Namibian Boundary Dispute in the Caprivi:To what extent does Botswana's Arms Procurement Program represent a drift towards Military Confrontation in the Region?

The Botswana and Namibian governments are currently involved in a dispute with each other over ownership of the small islands of Kasikili-Sedudu, (Kasikili is the Namibian name for the island) and Situngu in the Caprivi Strip. Like Sedudu, the Namibians also variedly refer to Situngu as Luyondo, Singobeka, Mbala and Zoti. The dispute over Sedudu Island currently serves before the World Court in The Hague, while the dispute over Situngu has been referred to a joint technical committee that has been set up by the two governments. The fear has been expressed that, given the strong national sentiments and heightened emotions surrounding the dispute, the losing side may not accept the World Court's decision on Sedudu Island, which is expected before the end of 1999. Oral submissions started on 15 February and the court is currently preparing its findings on the matter. Should either of the two applicants refuse to accept the Court's findings Southern Africa could very well be faced with a protracted border war in the region. The dispute over the two islands have been going on since 1991 and both Botswana and Namibia's current arms procurement programs have been indirectly linked by some observers to the dispute over the two river islands in the Caprivi Strip. Botswana is reportedly also not happy with Namibia's plans to pump large quantities of water on a permanent basis from the Okavango River while Namibia, in tum, has stopped short of accusing Botswana of aiding the Caprivi nationalist movement of Mishake Muyongo in his search for independence for the Caprivi from Namibia. Muyongo, like the majority of the 100 000 strong Mafwe people in the Caprivi, are Lozi-speaking and shares a cornmon kinship with the Lozi tribes across the border in Zambia.3 The secessionist leadership chose Botswana for political asylum in October 1998 when it became known that the Namibian government was about to arrest them. By December 1998 more than 2 200 Caprivian secessionists, including some 700 from the Linyanti area alone, had fled from the Caprivi into Botswana to escape possible persecution from the Namibian government.

The Compatibility of Corporate Exit Taxation with European Law

In National Grid the CJEU confirmed that exit taxes on unrealised capital gains of corporations upon emigration to another Member State constitute a restriction on the freedom of establishment. The Court found that these exit taxes could be justified, however, and set out the conditions upon which this could be possible. This article begins by briefly summarising the ambiguity that had surrounded this matter before this decision and then summarises the arguments of the Court, highlighting the circumstances under which such taxation might be compatible with EU law. Lastly, the commentary discusses the conformity of the Court's findings with international tax law and European internal market law as well as the implications of the judgement on the Commission Communication on Exit Taxation, on cross-border mergers and on company seat transfers

Shareholder access litigation and beyond

Purpose – The purpose of this paper is to consider the consequences of the July 22, 2011 decision of the US Court of Appeals for the DC Circuit in the case of Business Roundtable and Chamber of Commerce v. Securities and Exchange Commission (BRT v. SEC) on current and future SEC rulemakings. The case involved the vacating of the SEC's shareholder proxy access rule.Design/methodology/approach – The paper reviews the court's findings regarding the SEC's rulemaking procedures and analyzes how those findings will inform the SEC's future actions to adopt rules in the proxy access area, as well as future SEC rulemaking in other areas.Findings – The paper finds that the SEC is unlikely, at this time, to undertake future rulemaking involving shareholder access to the proxy statement. At the same time, the SEC may well lift the stay that it voluntarily placed on related amendments to its shareholder proposal rule. These amendments would permit shareholder proposals to companies regarding access to the proxy statem...

Terrorism According to the STL's Interlocutory Decision on the Applicable Law: A Defining Moment or a Moment of Defining?

On 16 February 2011, the Appeals Chamber of the Special Tribunal for Lebanon (STL) handed down its unanimous Interlocutory Decision on the Applicable Law in response to a number of questions put to them by the Pre-Trial Judge. The decision touched on multiple legal issues arising from the court's unique jurisdictional attributes, including its jurisdiction ratione materiae over the crime of terrorism. This paper provides a commentary on two specific terrorism-related aspects of the decision: (i) the court's finding that terrorism has crystallized to form a distinct international crime under customary international law and (ii) its (re)interpretation of terrorism under Lebanese law (Article 314 of the Lebanese Criminal Code). In so doing, it draws attention to the Appeals Chamber's unique approach to customary international law formation in light of prima facie differences in state practice and the implications of a fully fledged international crime of terrorism that includes a ‘transnational’ element. In addition, it highlights the Appeals Chamber's internationalist interpretative approach to domestic law but also questions whether the STL should be deferential to the decisions and interpretations of Lebanese courts given its unique characteristics which do not exist in any other international court. Due to its far-reaching implications, the decision merits the attention of scholars and practitioners alike as it has the potential to affect both domestic and international approaches to, and prosecution of, terrorism for many years to come.

Capital Punishment Jurisprudence: A Critical Assessment of the Supreme Court of Uganda's Judgment in Attorney General v Susan Kigula and 417 Others

AbstractThe Ugandan Supreme Court's decision in Attorney General v Susan Kigula & 417 Others ended a ten year constitutional challenge against capital punishment. The attorney general was appealing the Constitutional Court's declarations that a mandatory death penalty and a delay on death row of more than three years violate Uganda's Constitution. The respondents cross-appealed the Constitutional Court's declarations that the death penalty is constitutional and that hanging is an appropriate and therefore constitutional method of execution. The Supreme Court dismissed both the appeals and cross-appeals. This article summarises the Supreme Court's findings and analyses the court's reasoning. It demonstrates that, while the court's reasoning is generally in line with the interpretations offered by international courts and human rights bodies, the court arguably missed an opportunity to take a bolder approach regarding the relationship between the death penalty and the prohibition on cruel, inhuman and degrading treatment, particularly in light of recent international trends.

From 'She-Males' to 'Unix': Transgender Rights in Pakistan and the Criminal Law Origins of a Constitutional Case

In the summer of 2009, the Supreme Court of Pakistan ordered the Government of Pakistan, and also the governments of Punjab, Sindh, Baluchistan, and the Northwest Frontier provinces to better provide for Pakistan's transgendered citizens. This intervention by the Supreme Court into the social situation facing Pakistani transgendered citizens came as a surprise to many casual observers of Pakistan's political and legal landscape, albeit one that was welcomed by many. For others however, including many progressives, the Supreme Court's intervention resulted in as much puzzlement and consternation as it did relief. The Court's finding, for example, that transgenderism is a kind of disorder - as a predicate for the Court’s action on behalf of transgendered individuals - was just one of several aspects of the Court’s 'benevolence' that gave people cause to worry about what the Court was up to.While the legal and social issues raised by the Supreme Court of Pakistan's recent actions vis-a-vis transgendered individuals can be examined in many different ways and for many different purposes, in this chapter I will analyze how and why different conceptions of gender and identity circulated in the events surrounding the Supreme Court's actions. Specifically, I want to examine not only how state actors involved in this litigation articulated, at various times and spaces connected to the events surrounding this litigation, different conceptions of Pakistan’s transgendered citizens' gender, but also why these conceptions changed across time and space. Even more specifically, I aim to analyze how and why the gender of the transgendered individuals whose welfare was at issue in the Supreme Court changed from the time they were arrested in a police raid on a wedding party in Rawalpindi, Pakistan, until the time they and their brethren were 'liberated' by the Supreme Court in Islamabad, Pakistan. At different moments in this inter-urban and inter-institutional journey, these transgendered individuals were considered to be anything from 'she-males, to 'unix,' and also other things as well.

The Kosovo Advisory Opinion Scrutinized

AbstractIn the Kosovo Advisory Opinion, the International Court of Justice took the position that Kosovo's unilateral declaration of independence did not violate any applicable rules of international law. This article does not dispute the final finding, but rather critically examines the Court's somewhat controversial reasoning and considers the added value of the opinion for the clarification of legal doctrine in relation to unilateral declarations of independence. An argument is made that the Court's interpretation of the question and the identification of the authors of the declaration had significant implications for the Court's final finding. Yet, the Court cannot be criticized for not answering the question of whether or not Kosovo is a state, whether Kosovo Albanians are beneficiaries of the right of self-determination, or even whether the ‘right to remedial secession’ is applicable. However, the Court may well have implicitly answered that recognition of Kosovo is not illegal.

Correcting Deadly Confusion: Responding to Jury Inquiries in Capital Cases

In Weeks v. Angelone, 528 U.S. 225 (2000), the members of the capital sentencing jury asked for clarification of the jury instructions on the essential question of whether they were required to sentence Weeks to death upon the finding of certain aggravating factors. The judge merely informed the jurors to reread the instruction. The jurors returned with a death penalty sentence. The Supreme Court held that these jurors likely understood the instructions and at most Weeks had shown a slight possibility that the jurors believed they were precluded from considering mitigating evidence. However, the results of a mock jury study conducted by the authors strongly suggest that the Supreme Court's conclusion was incorrect. In fact, many jurors receiving the subject instruction do believe that they cannot weigh mitigating evidence. The Supreme Court's finding that the jurors in Weeks' trial understood the sentencing instruction was based on mere instinct and was likely incorrect.

The legal status of copyleft before the Spanish courts

This article studies the current understanding of copyleft by the Spanish judicature from the analysis of the collection of judgments delivered since the first appearance of this new concept in court in 2005. Two different main issues are discussed in this article: on one hand, the attitude of Spanish courts to copyleft, on the other, their approach to copyleft and moral rights. The study of the first point is based on the review of 20 judgments concerning musical works and the characteristics and importance of two existing case law presumptions, their application by the courts, and the lessons that may be drawn from four relevant cases. The study of the second element is based on the review of the only case which connects copyleft with moral rights by contrasting court's findings with the broad frame of protection to moral rights existing in Spain. Europe has recently witnessed a first launch of judicial decisions on open content and copyleft issues. From a practical perspective, the author explains the general framework designed by case law in Spain and points out several critical issues about the exercise of some moral rights over copyleft works in one of the jurisdictions with stronger moral rights protection.