Decision Of Tribunal Research Articles

The asylum case: an analysis of the International Court of Justice's leading judgment on political asylum and regional custom

This paper offers an overview of the political background in Peru when a dispute on the political asylum of Victor Raúl Haya de la Torre between Colombia and Peru arose. The claim and counter-claim submitted to the International Court of Justice (ICJ) and the Court´s decision are discussed. It critically reviews the judgment's main issues to the international legal debate: the right of qualification of a political offense, the discussion over regional customary international law, the duty or not to give a safe-conduct, and what should be considered urgency for the purposes of diplomatic asylum. It claims that the unilateral qualification of the offense is essential to the character of diplomatic asylum. It highlights that this was the first decision of an international tribunal that confirms the existence of a regional custom and discusses what is necessary for a local practice to be considered regional custom. It refutes ICJ´s ruling and argues that nowadays, in the Latin-American context, the territorial State is bound to issue a safe-conduct, regardless if it requested the refugee to leave the country. It disagrees with ICJ´s restrictive interpretation of the term “urgent cases” and understands that urgency shall be construed to allow diplomatic asylum in times of political instability and prevent it in times of democratic normality.

Konstytucyjne uwarunkowania zakresu kognicji komornika sądowego po wejściu w życie ustawy z 4 lipca 2019 r. o zmianie ustawy – Kodeks postępowania cywilnego oraz niektórych innych ustaw (Dz.U. 2019 poz. 1469 ze zm.)

The goal of the paper is to present the compliance with the Constitution of the Republic of Poland of the current scope of cognition of a court bailiff in civil proceedings. After the entry into force of the amendment to the Code of Civil Procedure of July 4, 2019, the bailiff is obliged to examine the limitation period for the creditor’s claim. This state of affairs raises important constitutional doubts. The assessment of the title issue would not be possible without taking a stance on the decision of the Constitutional Tribunal of 22.07.2022, P 23/19. The study uses a dogmatic-legal research method.

PERINATAL PALLIATIVE CARE IN POLAND AN INTRODUCTION

The article aims to present perinatal palliative care as a relatively young form of palliative care. The author undertook an attempt not only to reveal the essence of this form of care by elaborating on the terminological issues, but also drew attention to its development in Poland, pointing to the significance of the decision of the Constitutional Tribunal of October 22, 2020 in this regard. To indicate the ways parents whose children are affected by lethal defects can be supported it also became necessary to conduct comparative research aimed at presenting the forms of support in other countries, including those with corresponding legal culture. Taking advantage of the experience of other countries, as well as referring to the current development of perinatal palliative care in Poland, it might be possible to formulate conclusions indicating the direction which this form of care should develop towards

Leave of absence under the Mental Health Act 1983.

Richard Griffith, Senior Lecturer in Health Law at Swansea University, considers a recent decision of the Upper Tribunal that limits the use of leave of absence provisions when testing a detained patient's rehabilitation.

어구부표의 표시 방법 개선에 대한 입법론적 고찰 - 어구 손상사고 사례를 중심으로 -

Accidents between small ships and small fishing vessels sailing in the coastal waters of Korea and facilities installed for fishing on the coast occur frequently every year. These accidents are mainly caused by aquaculture farms, fishing nets, and gill nets installed in coastal waters. Common causes of ship accidents include the negligence of the officers of the crew on a sailing vessel, non-compliance with course maintenance, confirmation of ship position, and general navigation. It can be in various ways, such as non-compliance with the principles and regulations on the prevention of collisions at sea. In particular, to examine the cause of the accident related to the fishing net damage accident, it was analyzed through the decision of the Maritime Safety Tribunal, and as a result, the cause of the accident was neglect of the boundary, not securing an appropriate distance from the installed fishing gear, and insufficient establishment of the voyage plan. In order to reduce accidents caused by these human factors, it takes a long time and a lot of money, such as constant safety education for seafarers or changes to systems such as ship safety management system. In this paper, measures to reduce the occurrence of accidents by removing other risk factors other than human factors by intuitively discovering fishing gear a little faster are presented in 「Fisheries Act」, 「Rules on the Management of Fishing Licenses, etc.」, 「Aquaculture and fishing grounds」 We will try to find a way to reduce the damage to fishing nets by identifying and improving problems in the “Installation Standards for Marking Facilities” and “Aquaculture Industry Development Act”.

경계의무 위반의 원인비율 배분 기여 정도에 관한 연구

For the prevention of marine accidents, it is important to establish measures to prevent recurrence based on lessons learned from accidents that have already occurred, and one of the measures is to impose greater responsibility for violations of important obligations or continuous and repeated violations of obligations.
 Although it can be said that the effect can be increased, the degree of contribution to the violation of the duty of vigilance seems to be recognized as somewhat low when allocating the degree of cause-giving ratio in the decision of the Korea Maritime Safety Tribunal. The purpose of this study is to examine the points for improvement by examining the distribution of the degree of contribution of causes to the occurrence of accidents on both ships, and by examining the degree of judgment on the importance of the current vigilance duty in the prevention of marine accidents.

Banners and Memes

This article compares two waves of protests that have taken place in Poland: one related to the reform of the judicial system (2015) and the other to the decision of the Constitutional Tribunal that limited the right to abortion (2020). The analysis of banners, memes and photos documents new forms of expression of civic dissent and a generational shift in the visual rhetoric of citizenship. The analysis reveals the persistence of specific cultural and political patterns and new forms of protest resulting from different sources of collective imagination and oppositional readings of national myths and symbols. The juxtaposition of the visuals from 2015 and 2020 shows fundamental differences in using history and popular culture motifs in slogans and memes expressing the collective identity of the protesters. In 2015 conflict concerned specific legal solutions, and in 2020 displayed deep generational, gender and cultural disagreement. Concepts of social performances and deliberative democracy explain how demonstrations reflect the transformation of the Polish public sphere.

Formation of the legal status of the arbitration court in the jurisdictional system of the Russian Federation

The article contains a theoretical analysis of the doctrinal and legislative foundations of arbitration proceedings in the Russian Federation, as well as the legal status of the arbitration court in the system of protection of violated or disputed civil rights. The authors begin their research with a description of the existing methods of protecting rights. The arbitration court is referred by the legislator to the number of subjects exercising legal protection and is actually equated in its legal status with state courts. Despite the indisputable private law nature of the arbitration court, it has historically been and remains the only state-recognized subject of private law, whose decisions are subject to compulsory execution, if necessary. In addition, the decision of the arbitral tribunal, which has become binding on the parties to a legal conflict, is the basis for refusal to accept a statement of claim filed with a state court and containing a claim that is identical to that already considered by the arbitral tribunal. Therefore, it can be argued that arbitration is the only alternative to state legal proceedings (as opposed to mediation and all other ADRs). The difference between arbitration proceedings and mediation and other out-of-court conciliation procedures is shown. The issue of the correlation between arbitration courts and religious courts, as well as other public organizations providing services for the resolution and settlement of conflicts in the social sphere, has been analyzed. The conclusion is made about the exceptional position of arbitration courts, which do not allow attributing religious courts and other public organizations to them

The right to abortion during the COVID-19 pandemic in foreign countries: diversification of approaches

The article, based on a comparative analysis of the practice of foreign countries, examines the main trends in the development of the rights to legal termination of pregnancy (abortion), which were subject to restrictions during the COVID-19 pandemic. It is shown that in the context of the pandemic, access to abortion has decreased in almost all states, with a few exceptions. At the same time, significant restrictions on reproductive rights occur in the context of previously developed strategies and are directed towards the radicalization of approaches to abortion, which is demonstrated on the basis of an analysis of the decision of the Constitutional Tribunal of Poland of October 22, 2020, as an attempt by conservative politicians and the Catholic Church to finally limit reproductive choice and legitimize their priorities in the dispute about the beginning of the life of the human fetus. Ambiguous approaches to the regulation of abortion show that reforms are not complete and that abortion policy needs to be further explored during COVID-19.

Analysis of The UK Supreme Court Decision in Micula and Others V Romania

On 19 February 2020 the UK Supreme Court in the case of Micula and others v Romania upheld 2013 ICSID tribunal award and lifted the stay on its enforcement. This case commentary provides a historical background of the 15-year long-running dispute between Romania State and Swedish Micula brothers, his co-investors and companies in order to understand the decision of UK Supreme Court. An attempt has been made to analyze the Sweden-Romania Bilateral Investment Treaty, 2013 the decision of ICSID tribunal, 2015 decision of EU Commission, 2019 judgment by the General Court of European Union (GCEU), 2019 decision of the US District Court. In this comment, the author also made an attempt to analyze the decision given in the Achmea v Slovakia case along with GCEU decision which creates a negative environment for the cross-border investors and has a wider ramification on Bilateral Investment Treaties (hereinafter BITs). This case comment also shows how the judgment of the UK Supreme Court welcomed by the EU-investors and creates a positive environment for them to invest in the European Union and creates an obligation for the English Court to recognize the ICSID Award. Further, the ruling had a wide implication in Investment treaty arbitration and recognition of ICSID ruling in other jurisdictions. Finally, the author concludes the judgment in a wider political context of Brexit, International Investment Arbitration, BITs and Achmea case.

Discretionary Power, Scientific Uncertainty and Right to Life in the Context of the COVID-19 Pandemic: Lessons Learnt from the Administrative Tribunal of Guadeloupe and the French Council of State

Administrative Tribunal of Guadeloupe 28 March 2020, case n° 2000295 (Judge for interim relief); French Council of State 4 April 2020, cases n° 439904, 439905 (Judge for interim relief)Based on the precautionary principle and to protect the right to life under Article L. 521-2 of the French Code of Administrative Justice, the Administrative Tribunal of Guadeloupe (Judge for interim relief) ordered the Regional Health Agency of Guadeloupe and the University Hospital Centre of Guadeloupe to procure 200,000 COVID-19 screening tests corresponding to half of the population of Guadeloupe and to buy the doses necessary for the treatment of the COVID-19 epidemic with hydroxychloroquine and azithromycin for 20,000 patients. On appeal, the French Council of State, by disregarding the application of the precautionary principle and with controversial reasoning concerning the relationship between discretionary power and scientific uncertainty, annulled the decision of the Administrative Tribunal of Guadeloupe.

Rozważania na temat represyjnych i prewencyjnych elementów odpowiedzialności odszkodowawczej na przykładzie instytucji odszkodowania karnego (punitive damages) w świetle orzeczenia Sądu Najwyższego oraz Trybunału Konstytucyjnego

The verdict of the Supreme Court of 11 October 2013 (fi le I CSK 697/12) and the decision of the Constitutional Tribunal of 25 June 2015 (fi le SK 32/14) are discussed and their signifi cance for the understanding of punitive damages analysed. The main problem discussed in this paper is the question whether there is room under Polish law for punitive damages modelled a common law system and whether the adoption of this solution could possibly infl uence the basic premises constituting the liability for damages already adopted. The main focus has been put on the argumentation of the Supreme Court presented in its verdict regarding the possibility of enforcing by Polish courts a judgment in which a foreign court awarded punitive damages, and the arguments of the Constitutional Tribunal regarding the constitutionality of a legal provision establishing a possibility of fl at-rate damages, being awarded and increased in the event of the determination of guilt by the breaching party. Certain detailed provisions that are contradictory from the point of view of the fundamental assumptions underlying the liability for damages in Polish law and the laws of most European legal systems (and the German system in particular) are also examined. Further, a synthetic analysis of the positive and negative aspects of punitive damages identifi ed by other researchers is presented. This is followed by a mention of other institutions available under Polish law which may constitute an alternative to punitive damages, at least when it comes to the provision of an adequate preventive and punitive measure in the event of gross or culpable damage.

The South China Sea Arbitration (The Republic of Philippines v. The People's Republic of China)

I Introduction The Philippines v China Award in July 2016 of the Annex VII Arbitral Panel established under the auspices of the Permanent Court of Arbitration will stand as one of the most significant decisions of the law of the sea. The Award determined claims by the Philippines challenging China's assertion of so-called 'historic title', the characterisation of various land features, and the legitimacy of actions taken by China in the disputed areas. The claims of the Philippines were overwhelmingly accepted by the Tribunal. The central findings made by the Tribunal were that: (i) China had no entitlement to the waters, or resources of the sea or sea-bed, in the South China Sea based on any historic claim of use, and China's claims fell to be determined by the rules of the United Nations Convention on the Law of the Sea (UNCLOS); (ii) none of the land features claimed by China had the characteristics of an island for the purposes of Article 121 of UNCLOS, and hence none were capable of generating an exclusive economic zone; (iii) many of the land features claimed by China were low tide elevations (i.e. features that are submerged at high tide) and are therefore incapable of generating a 12 nautical mile territorial sea; (iv) many of the land features claimed by China were within the exclusive economic zone of the Philippines; and (v) as a result, many of the actions taken by China in the disputed areas by way of construction of artificial structures and interference with fishing rights amounted to unlawful interference with the rights of the Philippines for the purposes of UNCLOS. Many of the rulings could be described as predictable, in the sense that they are based upon a textual and contextual analysis of the relevant provisions of UNCLOS. Perhaps because the decision is legally sound and defensible, China's initial response focused upon attacks upon the perceived legitimacy of the Tribunal rather than the merits of the Award. The disputes in the South China Sea encompass a number of overlapping claims, some of which do not directly involve China (for example, each of China, Vietnam, Taiwan, the Philippines, Malaysia and Brunei lay claim to parts of the Spratly Island chain, and each claims extensive exclusive economic zones from islands in that chain, with those claimed maritime zones overlapping and intersecting). The Award therefore has significance well beyond China and the Philippines. Because of the principled and detailed manner in which the Tribunal approached its task, the Award will also stand as an authoritative statement of legal doctrine in the previously uncharted areas of UNCLOS to which it is addressed. This note will consider the jurisdiction and legitimacy of the Tribunal and the Award, and the key legal rulings contained within it. II The Background to Legitimacy Legitimacy in international law dispute settlement is an oft-studied and fragile creature which influences both the direct likelihood of enforceability of a particular award, and also the longer term influence of a particular award in the international community. (1) The legitimacy of the South China Sea Tribunal and the resulting Award was subject to continuous scrutiny and criticism by China throughout the process, and following the Award. That criticism must be placed in the context of existing scholarship on legitimacy. In the case of international treaty regimes, a dispute resolution procedure can have a direct effect either by virtue of related sanctions or as a result of the normative legitimacy pull of its decisions. (2) Adverse decisions or findings lead both to diplomatic pressure and adverse publicity for the state in question, each of which encourages compliance with the view or decision of the international tribunal. International dispute resolution procedures also serve to interpret relevant international laws or rules, increasing the efficacy and progressive development of the international legal system. …

Making Available Technical Expertise and Being Effectively Connected to a Permanent Establishment

This article discusses the recent decision of the Income Tax Appellate Tribunal (Delhi) in which the Tribunal found that a substantial part of the payment made by the Board of Control for Cricket in India to a United Kingdom resident company to establish and run the Indian Premier League was taxable in terms of article 13 of the India-United Kingdom tax treaty. The author analyses the key aspects of the Tribunal’s decision, covering the scope of India’s domestic law source rule, the “make available” condition in article 13(4)(c) of the treaty, the scope of the “effectively connected” to a permanent establishment requirement – and the Tribunal’s interpretation – of article 13(6), and the interplay between the “effectively connected” condition and the need for profits to be “attributable to” a permanent establishment under article 7 of the treaty.

Data Retention Saga Continues: Decision of the Polish Constitutional Tribunal of 30 July 2014 in Case K 23/11

Data Retention Saga Continues: Decision of the Polish Constitutional Tribunal of 30 July 2014 in Case K 23/11

Obwody łowieckie w świetle wyroku Trybunału Konstytucyjnego z 10 lipca 2014 r.

The article discusses hunting areas in light of the decision of the Constitutional Tribunal of 10 July 2014. The starting point of the analysis is the historical development of the hunting area concept as the key element of the hunting legislation from the Presidential Decree of 1927, through the legislation of the socialist period until the regulations currently in force. The Constitutional Tribunal observed that including private properties into hunting areas results in the restrictions on private ownership of land and as such violates the Polish Constitution. The article points out that the problem arises since land owners are deprived of their hunting right which is taken over by the state. As a result, the state creating hunting areas does not include private properties into them, but administers the hunting law, which belongs to the state. In this situation there is no reason to involve land owners in the process of creating hunting areas. The issues in question are also analyzed in the context of the judgements of the European Court of Human Rights concerning hunting areas.

Minimum Alternate Tax and the Indian Tax Treaties

This article provides an analysis of the Indian case law on the minimum alternate tax provisions under the Indian Income Tax Act 1961. The question is whether article 7 of the Indian tax treaties precludes this tax. A recent decision of the Income Tax Appellate Tribunal of Delhi confirms that it does so. The issue is of particular interest for non-resident enterprises, law firms and academics.

Goodbye, Maffezini? On the Recent Developments of Most-Favoured-Nation Clause Interpretation in International Investment Law

The article focuses on the development of post-Maffezini practice of interpretation and application of most-favoured-nation clauses in international investment law. Although such clauses differ as to their precise formulation, the traditional view was that they applied to substantive treatment only. The decision of the arbitral tribunal in Maffezini was a point of change that gave a new, unpredicted dynamic to the interpretation of mfn clauses in bits. The aim of this article is to shed a light on the development of international investment jurisprudence in order to confirm or to question the sustainable nature of the shift in interpretation of mfn clauses. The analysis also draws from the recent work of the Study Group of the un International Law Commission. Some recent and drafted investment agreements are also taken into consideration with a view to completing the interpretation of mfn clauses by investment tribunals and the ilc report.

Globalization and the Animal Turn: How International Trade Law Contributes to Global Norms of Animal Protection

AbstractMany animal and environmental activists think of international trade law as a block to the achievement of their goals and perceive the World Trade Organization (WTO) as a threat to animals. Yet, the first legal decision of an international tribunal to devote careful, sustained attention to animal welfare issues comes from the WTO, in the EC – Seal Products decision. This article argues that international trade law is currently an important, although under-acknowledged, locus for the development of global norms concerning the protection of animals, and that animal conservation and animal welfare can be seen as aspects of a single overarching principle of animal protection. International trade law contributes to animal protection in two ways. Firstly, WTO jurisprudence has recognized animal protection as a legitimate basis for invoking exceptions to trade rules (as in EC – Seal Products). Secondly, international trade negotiations enhance cooperation on the implementation and enforcement of existing conservation obligations (as in the new Trans-Pacific Partnership’s Environment Chapter).

Conflicting Narratives of Obligation: Conscientious Objectors and Deserters in Canadian Great War Fiction

The article is an analysis of representations of conscientious objectors and deserters in Canadian Great War fiction. The First World War caused widespread enthusiasm in Canada for what was seen as a crusade in defence of a sacred Cause. Propaganda used the Christian concept of a ‘final war’ for a peaceful order and young Canadian volunteers were a central element of this myth: they were seen as peace-makers forced to become warriors in a global conflict that was to be the last of all wars. Given the patriotic attitude of most Canadians, young men in Canada were therefore under much pressure to enlist. In the introduction, the article presents the fragmentation of the Canadian peace movement at the beginning of the war and discusses the difficult situation of conscientious objectors in Canada. Starting with the figure of Quentin Thatcher in Philip Child's God's Sparrows (1937), my intention is to analyse the conflicting loyalties of conscientious objectors and the complex ways they negotiated between the dictates of their conscience and the official charges of cowardice and selfishness. The paper focuses subsequently on the figure of Robert Ross, the protagonist of Timothy Findley's The Wars (1977) and his ambiguous act of protest. Finally, I analyse figures of objectors and deserters in Rain Before Morning (2006), in which Mike Poole depicts the dramatic attempts made by young Canadians to avoid conscription despite the decision of a local tribunal. The conflicting concepts of obligation are interpreted in reference to the historical context, in particular the early twentieth-century discourses of masculinity and citizenship.