Developments In Case Law Research Articles

When Religion Speaks: Denmark’s Face Covering Ban and European Human Rights Law

ABSTRACT This article argues that although the challenges brought against banning face coverings in public spaces have so far been ineffective before the ECtHR, the particular situation obtaining in Denmark, the evolving case law regarding ECHR's Article 14 freedom from discrimination, and a re-examination of the distinction between protection of religious manifestation under Article 9 and expression under Article 10 could suggest a different outcome in future. This is because the ECtHR's jurisprudence regarding face covering bans does not consider the context of those bans or the possibility of non-religious claims. Specifically, this article examines two important contextual distinctions that suggest that challenges to face covering bans in countries other than France might find a different outcome: (1) the historical context of the political and constitutional debates (or lack thereof) surrounding the ban in specific countries and contemporaneous legislation and policy regarding Muslims and minorities and (2) the missing legal context that the Court could, and we argue should, use to inform the claims of veil wearers, namely, vulnerability and indirect discrimination stemming from Article 14 jurisprudence and the separate expression rights under Article 10.

The Appellate Court’s Reformatory Powers in ECtHR Case Law – between the Efficiency of the Procedure and the Guarantees of the Fair Trial in Criminal Proceedings

Abstract Appeal proceedings in criminal cases are regulated in various ways by European legislators. The ECtHR case law does not impose any particular model of appeal proceedings; however, Article 6 is applicable to appeal proceedings and the manner of its application is contingent on the specific features of the proceedings in question. One of the key problems in this respect is the way the issue of the reformatory powers of appellate courts is regulated. This article seeks to reconstruct the rules worked out in the Strasbourg Court’s case law pertaining to this matter, as well as to formulate proposals as regards applying the principle of immediacy in appeal proceedings and the issue of the appellate court’s differing assessment of facts established by the court of first instance. The possible developments of case law in this area are also discussed.

The Italian Constitutional Court in its Context: A Narrative

Italian Constitutional Court, development of re-centralised case law against the displacement of national constitutional courts – Italian Constitutional Court challenges the Simmenthal doctrine – Double preliminary questions – The Italian Constitutional Court’s continuous need for legitimation – The Italian Constitutional Court’s adaptation of its case law and doctrines to the legal and political context

Rights of Secured Creditors under Indian Insolvency Law

Credit is the lifeblood of an economy. Additionally, secured credit holds further importance as it enables a borrower to seek credit even in a weak cashflow situation. This is because, in a secured credit transaction, lenders have recourse to the assets of the borrower, as opposed to merely relying on the borrower’s ability to service debt. Considering the underlying advantage in the form of rights over the borrower’s assets which significantly affects the creditor’s credit decision it is important to look at how these rights change when the borrower undergoes corporate restructuring? In this paper, the authors provide an analysis of such creditors in insolvency and liquidation proceedings of companies under India’s relatively nascent Insolvency and Bankruptcy Code, 2016. In this background, the authors trace the rights of secured creditors across different stages of the proceedings under the law, and reviews evolving case law pertinent issues such as validity of differential pay-outs to secured and unsecured creditors, treatment of competing security interests and inter-creditor agreements in insolvency and liquidation proceedings under the IBC.

The Dutch foundation—statutory objectives and new disclosure requirements

Abstract The governance and operations of a Dutch foundation are regularly affected by case law and legislative developments. In this contribution, we discuss recent case law illustrating the importance of clearly formulated objectives of a foundation. We also address the recently introduced Bill on Civil Society Organizations.

Proselytism and Ostentation: a Critical Discourse Analysis of the European Court of Human Rights’ Case Law on Religious Symbols

Abstract This article focuses on the European Court of Human Rights’ (ECtHR) case law about religious symbols (N=27) from 2001 to 2018, exploring the following questions: What discourses does the ECtHR employ in cases about religious symbols? How do ECtHR’s discourses about religious symbols evolve in time? The data is innovatively analyzed through critical discourse analysis and leads to two findings: first, the ECtHR tends to endorse ‘Christian secularism,’ considering Christian symbols as compatible with secularism but not Muslim symbols; second, ECtHR discourses occasionally become more favorable to Muslim applicants over time, but the evolution of case law is not linear.

Distribution of foundation assets to another foundation or trust—powers of the trustees and claims based on unjust enrichment

Abstract The article deals with fundamental questions regarding the distribution carried out by a Liechtenstein foundation to another foundation and/or trust instead of a direct distribution to the beneficiaries. In principle, this phenomenon partly falls under the concept that is labelled as ‘decanting’ within the private client law community. One of the key advantages of foundations as compared to other instruments is the high level of stability combined with very limited instruments to change the purpose as well as the beneficial interest. As with trusts, the ‘decanting’ in the field of the private foundation practice seems to be a method to adjust the set-up of the vehicle, leaving old provisions behind that might no longer be compatible with the changed circumstances of the founder’s/settlor’s family. The article deals with the different legal issues involved, such as the ultra-vires-doctrine as well as the relevant issues of unjust enrichment. Finally, the author gives guidelines for practitioners by discussing the recent developments in Liechtenstein case law.

Opening a Path towards Sustainable Corporate Behaviour: Public Participation in Criminal Environmental Proceedings

Establishing criminal liability for environmental offences remains daunting, particularly with regard to the ‘no plaintiff—no judge’ element as a result of which the public seems to be ultimately deprived of the possibility to participate in criminal environmental proceedings. While there is arguably a lack of specific instruments at the European Union (EU) level which would prescribe such legal obligation on the part of the State, there has been a shift in understanding the role of the public and its participation in criminal liability cases, namely under the auspices of the so-called effective investigation and the concept of rights of victims in general. Using the example of the Czech Republic as a point of reference, this article aims to assess the relevant legal developments at both EU and Czech levels to illustrate why the non-governmental organizations (NGOs), essentially acting as public agents, should be granted an active role in environmental criminal proceedings. After examining the applicable legal framework and case law development, the article concludes that effective investigation indeed stands as a valid legal basis for human rights protection which incorporates an entitlement to public participation. Despite that, this pro-active shift is far from being applied in practice, implying that the legislation remains silent where it should be the loudest, and causing unsustainable behaviour of companies.

The series of trademarks: theory, legislation, law enforcement

Key words: trademark, series of signs, dominant element, originality, resolution
 The article, based on the analysis of the doctrine of intellectual property law,legislation of Ukraine, law enforcement practice, examines the state and prospects ofproviding legal protection of a series of trademarks. To overcome the existing gap inthe legislation of Ukraine, the need to amend the Law of Ukraine «On Protection ofRights to Marks for Goods and Services» is justified. It is proposed to define «a seriesof marks as a set of trademarks belonging to one owner of interdependent rights, interconnected by the presence of the same dominant verbal, figurative or combined element,having phonetic and semantic similarity, and may also bear minor graphic differencesthat do not change the essence of the trademarks. The lack of definition ofthe term «dominant element» in the legislation is emphasized. Based on the provisionsof the philosophy and doctrine of intellectual property law, the dominant elementmeans the smallest indivisible component of the trademark, which is originaland not descriptive. Based on this, its main features are distinguished: originalityand indivisibility.It is proved that the same position of the dominant element in the structure of allsigns is necessary to create a stable image of consumers in relation to a particularproduct and its manufacturer. Examples of court decisions on recognition or refusal toprovide legal protection to trademarks are given.In the context of reforming the legislation of Ukraine in terms of its approximation toEU legislation and the development of relevant case law, which must meet Europeanstandards, the expediency of using the legal positions of such a leading democratic courtas the European Court of Justice is justified. Attention is drawn to the fact that the decisionof the ECJ is not a source of law for resolving disputes of this category by the courtsof Ukraine. At the same time, they are a source of harmonious interpretation of the nationallegislation of Ukraine in accordance with the established standards of the legalsystem of the European Union. It is proved that this conclusion is consistent with thepurpose and objectives to be solved in the country in the process of implementing the provisionsof the Association Agreement in the legislation of Ukraine. Proposals are formulatedto improve the quality of legislation in the field of IP law.

Application of the Paternalism Principle to Constitutional Rights: Mental Health Case-Law in Ireland.

In adjudicating on matters relating to fundamental constitutional or human rights, courts make important statements about the principles which apply. The principles articulated will have a profound impact on the outcomes of such cases, and on the development of case-law in the relevant field. In the fields of medical law and mental health law, various courts have moved away from deference to medical decision-making and paternalism to a person-centred rights-based approach. However, courts in Ireland have continued to interpret mental health law in a paternalistic fashion, praising paternalism as if it is particularly suitable for mental health law. This raises profound questions about judicial attitudes to people with mental health conditions and judicial reluctance to confer full personhood on people with disabilities. This article outlines case-law in Ireland regarding paternalism in mental health law and discusses the consequences for constitutional rights in Ireland.

The EPO Guidelines They Are a-Changin’

The EPO Guidelines They Are a-Changin’

On Implementation of Intersectionality in Prosecuting and Adjudicating Mass Atrocities by the International Criminal Court

This article examines the relevant case law of the International Criminal Court (ICC or Court) in order to assess the actual scope, confines and prospects of taking ‘intersectionality’ perspective in the Court’s prosecution and adjudication of mass atrocities involving discriminatory targeting. While the ICC Prosecutor and judges traditionally resorted to uni-sectional analysis in considering such atrocities, some of the Court’s more recent jurisprudence subsequent to the adoption of the ICC Prosecutor’s Policy Papers on Sexual and Gender-Based Crimes (2014) and on Children (2016) seems to be indicative of a more intersectionality-friendly approach to prosecuting and adjudicating international crimes against different protected groups and their members. In addition to the two Prosecutor’s policy documents - both of which explicitly address the interplay between phenomena of interesectional discrimination and mass crimes in the work of the ICC Prosecutor - the Al Hassan confirmation decision, CARII decisions and Ntaganda reparations order appear to betoken similarly positive developments towards pursuing more intersectional approach in the ICC case law. A critical and chronological assessment of the Court’s intersectionality jurisprudence, however, suggests that it may be too early to say that these recent developments in ICC case law are to be seen as an indication of an emerging trend to give greater and more conscious consideration to the intersectionality phenomena in its rulings. They may just as well simply represent occasional lucid moments in the Court’s reasoning and pronouncement on this complex issue. It is accordingly proposed that the ICC should take intersectionality more seriously in both prosecution and adjudication of international crimes that involve multiple and intersecting forms of discrimination. Having discussed what that might have looked like in some of the earlier ICC case law, the article turns to consider the prospects and space for the ICC to actually implement intersectionality in its future jurisprudence. It looks at potential practical implications of the proposed jurisprudential developments for the Court and for the field of international criminal justice more generally. Finally, the article also reflects on the eventual pitfalls and challenges that such a regular and consistent intersectionality-driven interpretation and application of international criminal law may present for the Court.

On Implementation of Intersectionality in Prosecuting and Adjudicating Mass Atrocities by the International Criminal Court

Abstract This article examines the relevant case law of the International Criminal Court (hereafter icc or Court) in order to assess the actual scope, confines and prospects of taking ‘intersectionality’ perspective in the Court’s prosecution and adjudication of mass atrocities involving discriminatory targeting. While the icc Prosecutor and judges traditionally resorted to uni-sectional analysis in considering such atrocities, some of the Court’s more recent jurisprudence subsequent to the adoption of the icc Prosecutor’s Policy Papers on Sexual and Gender-Based Crimes (2014) and on Children (2016) seems to be indicative of a more intersectionality-friendly approach to prosecuting and adjudicating international crimes against different protected groups and their members. In addition to the two Prosecutor’s policy documents—both of which explicitly address the interplay between phenomena of interesectional discrimination and mass crimes in the work of the icc Prosecutor—the Al Hassan confirmation decision, carii decisions and Ntaganda reparations order appear to betoken similarly positive developments towards pursuing more intersectional approach in the icc case law. A critical and chronological assessment of the Court’s intersectionality jurisprudence, however, suggests that it may be too early to say that these recent developments in icc case law are to be seen as an indication of an emerging trend to give greater and more conscious consideration to the intersectionality phenomena in its rulings. They may just as well simply represent occasional lucid moments in the Court’s reasoning and pronouncement on this complex issue. It is accordingly proposed that the icc should take intersectionality more seriously in both prosecution and adjudication of international crimes that involve multiple and intersecting forms of discrimination. Having discussed what that might have looked like in some of the earlier icc case law, the article turns to consider the prospects and space for the icc to actually implement intersectionality in its future jurisprudence. It looks at potential practical implications of the proposed jurisprudential developments for the Court and for the field of international criminal justice more generally. Finally, the article also reflects on the eventual pitfalls and challenges that such a regular and consistent intersectionality-driven interpretation and application of international criminal law may present for the Court.

국제건설계약상 청구보증에 관한 영국법계 판례의 발전 - 비양심성 법리를 포함하여 -

청구보증은 국제 건설 계약과 선박 건조 계약에서 널리 사용된다. 그러나 청구보증이 악용될 경우 채무자의 유동성과 신용을 해치고 수익자의 청구보증권을 박탈하면 수익자의 유동성도 해치게 된다. 건설계약 준수 및 청구보증에 관한 법률이 영국법이나 영국법계 국가로 제정된 사례가 많아 이를 재검토하고 법리 개발을 도모할 필요가 있다. 우리는 국제 건설에서 청구보증의 활용 사례를 검토하고 청구보증의 요건, 청구보증의 독립적 추상성 및 예외, 청구보증의 지급 금지 당사자에 대한 영국 및 영국법계 국가, 특히 싱가포르의 개발을 검토하였다. 보증을 요구하기 위한 지불금지의 요건을 완화한다. 청구보증의 의뢰인인 건설회사나 조선회사의 입장에서 주로 법을 준수할 수 있는 권리의 의무를 충분히 이해하고 대처할 필요가 있으며, 수익자나 보증은행은 수익자에 대해 지급금지 또는 가처분하도록 할 필요가 있다.<BR> 비양심적인 행위는 청구보증 하에 수익자의 청구를 억제하기 위한 근거로 싱가포르 및 호주에서 잘 알려져 있다. 청구보증은 신청자가 수익자에게 지불해야 할 의무를 이행할 것을 보증하기 위해 보증인이 제공한다. 싱가포르 항소법원은 비양심성 법리의 배제조항을 청구보증 청구의 제한에서 인정하는 경향이 있으므로, 계약자는 비양심성 법리는 청구보증의 수익자에 대해 가능한 한 제한적으로 허용해야 한다.

Tort Compensation in the United States and England: Goal or Means?

The modern state exists and acts on behalf of its citizens. No longer is it the state of a sole ruler acting on his or her own behalf and for his or her own sake. Rather, it is a civil state whose role is to preserve the rights of its citizens and to maximize their welfare. An important instrument for the goal of realizing these roles is the government authority held by the state. Consequently, the modern state exercises extensive government authority in social and economic life. The widening of the areas of activity in which it is involved and over which it exercises its authority raises the question of the desirable scope of state liability for the negligent exercise of this authority. In this paper, I analyze the scope of tort liability of public agencies and public authorities in the United States and England. The innovation proposed in this article is twofold for, although the scope of liability of public agencies has been extensively surveyed and analyzed in the academic literature, these surveys and analyses were for the most part conducted by means of organizing the development of the relevant case law along a timeline. This article adopts a different approach, examining the scope of liability of public agencies according to their areas of activity. Accordingly, the abundant court judgments are classified into varied areas of government activity. This technique allows for fine, precise inferences to be drawn with regard to the level of liability of public agencies. It can be started already at this stage that, as a whole, the fundamental conclusion of this article is that in both the United States and England the remnants of the traditional doctrine, that of sovereign or crown immunity, are marked. An analysis of the law in these countries shows that to this day, public agencies still enjoy extensive protections against tort claims and that the general approach there has always been to limit liability. The second innovation included in this article is, in a nutshell, the suggestion of a possible reason for the prevalence of this doctrine in the United States and England. I argue that this reason may be the manner in which each judicial system perceives the role of the instrument of tort compensation. Accordingly, I contend that compensation is perceived in the United States and England as a means to achieve the goals of tort law, rather than as an independent goal standing on its own merit.&#x0D;

No Need of Evidence for Moral Damages Compensation after a Trademark Infringement – An Appropriate Development of the Brazilian Case Law?

No Need of Evidence for Moral Damages Compensation after a Trademark Infringement – An Appropriate Development of the Brazilian Case Law?

Restrictive measures - sanctions compliance, implementation and judicial review challenges in the common foreign and security policy of the European Union

This article provides a comprehensive overview of EU restrictive measures applicable within the EU, the competences and legal evolution which lead to the implementation of Common Foreign and Security Policy restrictive measures (CFSP sanctions), and considers procedural issues, developments in the latest case law, and the challenges of securing compliance with EU sanctions, which reach beyond the territory of the EU.

CODIFICATION, CONSOLIDATION, RESTATEMENT? HOW BEST TO SYSTEMISE THE MODERN LAW OF TORT

AbstractThe law of tort (or extra or non-contractual liability) has been criticised for being imprecise and lacking coherence. Legal systems have sought to systemise its rules in a number of ways. While civil law systems generally place tort law in a civil code, common law systems have favoured case-law development supported by limited statutory intervention consolidating existing legal rules. In both systems, case law plays a significant role in maintaining the flexibility and adaptability of the law. This article will examine, comparatively, different means of systemising the law of tort, contrasting civil law codification (taking the example of recent French proposals to update the tort provisions of the Code civil) with common law statutory consolidation and case-law intervention (using examples taken from English and Australian law). In examining the degree to which these formal means of systemisation are capable of improving the accessibility, intelligibility, clarity and predictability of the law of tort, it will also address the role played by informal sources, be they ambitious restatements of law or other means. It will be argued that given the nature of tort law, at best, any form of systemisation (be it formal or informal) can only seek to minimise any lack of precision and coherence. However, as this comparative study shows, further steps are needed, both in updating outdated codal provisions and rethinking the type of legal scholarship that might best assist the courts.

Trying Times: Conservation Easements and Federal Tax Law (Sept. 2020)

Since 2005, the courts have decided more than 90 cases involving challenges to deductions claimed with respect to conservation easement donations. More than 135 opinions have been issued in these cases due to appeals, motions for reconsideration, and the issuance of separate opinions addressing specific issues. This outline, which is updated annually, discusses the case law and other developments in the conservation easement donation context.

‘Pushing the boundaries’: a dialogical account of the evolution of European case-law on access to welfare

ABSTRACT In the context of the 2004 Enlargement, several EU governments reformed their social legislation to restrict the access to benefits of job-seeking or inactive EU citizens. Many of these restrictions were in tension with the case-law of the European Court of Justice, but when it came to judge their compatibility with EU law, the ECJ was more lenient than many anticipated. This article analyses this shift in ECJ case-law by looking at the dialogue between the Court and national authorities against the backdrop of EU legislative reform. It demonstrates that Member States contributed to the evolution of case-law by ‘pushing the boundaries’ of EU law both domestically and before the Court. It shows in particular how closely the arguments presented before the Court by national judiciaries or governments correlate with the new interpretations adopted by the Court itself. This is illustrated with empirical evidence from the UK and Germany.