Doctrine Of Abuse Research Articles

Abuse of Circumstances as a Reason for Cancellation of Agreement in the Indonesian Legal System

This research aims to find out the development of the doctrine of abuse of circumstances as a reason for canceling an agreement in the Indonesian Legal System. The proposed problem formulation contains: How is the development of the doctrine of abuse of circumstances in the Civil Law Legal System, especially Indonesia? and how is the consideration of judges in Indonesia in giving court decisions related to the doctrine of abuse of circumstances? This research includes normative legal research, with data collected based on written regulations and expert opinions. The results of this study indicate that the development of the doctrine of abuse of circumstances has been recognized in the Netherlands which adheres to the Civil Law System in the form of legislation, while Indonesia only recognizes this doctrine as limited to court decisions or has not been adapted in the form of legislation. Nevertheless, some judges in deciding civil cases in Indonesia recognize and use the doctrine of abuse of circumstances as a reason for canceling agreements in several civil cases. This shows a dilemma in the enforcement of justice in Indonesia, especially in the context of civil law considering that Indonesia adheres to the Civil Law System so that the main reference for judges in deciding cases is the law. In this case, the doctrine of abuse of circumstances has not been regulated in written civil law in Indonesia.

Responding to the danger of wrongful conviction for historical sexual abuse: A case for resurrecting abuse of process for delay?

This article examines the potential risk of wrongful conviction for defendants facing historical sexual abuse charges where there is substantial delay. This risk arises from problems with truth-finding based on witness testimony, challenges posed by missing evidence and the increasing erosion of procedural safeguards. This article considers two recent proposals for reform, including first, whether the Court of Appeal should be more prepared to revisit the factual basis of decisions in historical sexual offence appeals; or second, whether there is a need to strengthen procedural safeguards at trial through the doctrine of abuse of process for delay. This article concludes that, whilst there would be advantages to broadening the grounds for appeal, the criminal courts should be more prepared to stay substantially delayed claims for abuse of process where there is missing evidence. The current approach has the potential to be unfair and fails to protect those defendants who are most disadvantaged by delayed claims.

Misbruik Van Omstandigheden Sebagai Dasar Pembatalan Akta Pengikatan Jual Beli

Indonesia has legal regulations which are the result of a combination with Dutch law, one of which is civil law in Indonesia which is regulated in the Civil Code or the Civil Code. Over time, legal developments have undergone significant changes following the needs of today's society, one of which is the addition of misbruik van omstandigheden or abuse of circumstances as a new form of handicapped will in the Netherlands, on the other hand, the Indonesian Civil Code has not been added to the Civil Code, but in its implementation, many judges have used the doctrine of abuse of circumstances in deciding a case in court. This research will further discuss the terms of abuse of circumstances based on the study of the decision. The research method used in this study uses a qualitative analysis method with literature study and is a type and type of normative juridical research carried out by examining existing legal norms through library research with the aim of further analyzing the requirements of misbruik van omstandigheden. Based on the results of the research, it can be concluded that the decision of the Mataram District Court Number 234/Pdt.G/2020/PN Mtr has fulfilled the conditions for misuse of circumstances.

Vanishing Treaty Claims: Investors Trapped in a Temporal Twilight Zone

Abstract The recent surge of arbitral awards forging new paths in the less-explored frontier of jurisdiction ratione temporis is laudable. Yet, if left unchecked, the trajectory of jurisdictional barriers expanding in depth and difficulty threatens to shrink the road of arbitration to the eye of a needle. Two emerging rules are especially worrisome: first, the right to claim under BITs vests exclusively with the investor holding the investment at the date of breach; second, the right is extinguished upon disposal of the investment. Concomitantly, once a pre-existing foreign investment is impaired by State measures, a temporal twilight zone is formed between the date of breach and date of institution of arbitration. The right to claim risks vanishing into a legal black hole along with the investment. Impecunious investors are left with a binary choice: litigate or mitigate. Ultimately, the broader lesson is for investment tribunals to avoid two common missteps when examining temporal objections: overreach of jurisdiction ratione temporis into areas more appropriately covered by the other jurisdictional dimensions (ratione materiae and ratione personae) and doctrine of abuse of process; and overreliance on principles transposed from private commercial arbitration (succession and separability).

HOW TO IDENTIFY INSIDERS AND INTRUDERS DISGUISING AS INVESTORS IN THE ASSIGNMENT OF INVESTMENTS

AbstractThe constant exchange of investment assets poses a risk of ‘commoditisation’ of investment treaty claims. Nevertheless, both traditional and modern investment treaties contain sufficient safeguards against attempts by host State ‘insiders’ and third State ‘intruders’ to create artificial access to arbitration. First, the definition of ‘investment’ can filter genuine investments from bare acquisition of assets (ratione materiae). Second, the textual linkage between ‘investor’ and ‘investment’ strongly implies that ‘active contribution’ in the investment is required from assignees to qualify for protection (ratione personae). Third, the doctrine of abuse of rights prevents treaty shopping and internationalisation of domestic disputes (ratione temporis).

The Abuse of Ownership: A Social Justice Perspective

Abstract Given that property rights are politically sensitive, and that the right of ownership is the most extensive property right, this article undertakes a political analysis of the so-called abuse of ownership doctrine as a private law limitation to the right of ownership. The notion of the abuse of rights as is defined and described by the Serbian academic, Professor Vodinelić, is explained, and examined with respect to how it fits into four different social justice theories. This analysis shows that the doctrine of abuse of rights would change in structure, and in the way it is applied, depending on the underlying value system which is adopted in a society.

Abuse of Rights in English Contract Law: Hidden in Plain Sight?

AbstractThe article argues that the fetters on the exercise of unilateral contractual discretionary powers that were defined in Braganza v BP Shipping Ltd and the limits on damages clauses as redefined in Cavendish Square Holding BV v Talal El Makdessi are imposed to prevent the abuse of contractual rights or freedoms and this is suggestive that a broader principle against the abuse of rights might be at work in English contract law. Whilst English law has traditionally been understood as rejecting a free‐standing and general doctrine of abuse of rights, the article explains why this should not be regarded as an obstacle to the proposed analysis. In both the context of contractual discretion and damages clauses, the central importance of abuse is evident from the tests that are applied, the factors that the authorities tell us are relevant to their application and both the high bar for the court to intervene and the flexibility of the relevant standards, which filter out only the most egregious and inadmissible cases.

Economic dependence in digital markets: EU remedies and tools

While the application of the abuse of dominant position struggles to face some exclusionary and exploitative abuses in digital markets, new tools and remedies are being explored within the EU multi-level context to address the abusive behaviours towards economically dependent businesses. This article discusses whether the doctrine of abuse of economic dependence may constitute a flexible remedy to complement the application of the abuse of dominant position and face the increasing economic dependence and imbalance of bargaining power in digital markets. Although not harmonised at EU level, this tool has been enhanced in national realms to tackle some abusive conducts in digital markets, such as the refusal to share datasets, the sudden interruption of commercial relationships, and the imposition of unfair conditions for the use of online intermediation services. Starting from a comparative analysis of some recent national applications of this tool in digital markets, the article questions whether an EU doctrine of abuse of economic dependence in digital markets may represent a feasible option, at the same time avoiding the risk of interpretative fragmentation among Member States. The article then compares different ex ante regulatory options proposed at the EU level to tackle (among others) the problems arising from the “dependence” of businesses on large online platforms, followed by a discussion on the possible role of the abuse of economic dependence among the spectrum of different ex ante and ex post EU remedies and tools for behaviours of abuse of economic power in digital markets.

The Development of the Doctrine of Abuse of Law and the Danish Cases: Time to Shift the Focus from Non-Genuine Arrangements to Single (Abusive) Transactions?

The article first retraces the history of the standards adopted under the EU abuse of law doctrine to identify abusive conduct executed by the taxpayer. Then, the authors progress from the differences between the rules contained in the Anti-Tax Avoidance Directive (ATAD) and the findings of the CJEU in the Danish Cases, which constitute the last steps of that history, and elaborate on some proposals in order to update the former in light of the judges’ findings. They propose shifting the focus from non-genuine arrangements to single (potentially abusive) transactions, also taking into consideration the criteria relied upon in transfer pricing and controlled foreign company (CFC) legislation to ascertain whether economic substance is present. abuse of law, ATAD, Danish Cases, GAAR, arrangement, transaction, fundamental freedoms, genuinity, artificiality, transfer pricing.

Some aspects of the historical development of abuse of right in civil proceedings

The article is the study of certain periods of the development of abuse of right in civil proceedings. It is noted that one can foundthe first references to the abuse of right and its consequences for the legal order as a whole, as well as prototypes of liability for its commission,in the ancient documents of Roman law.
 It is substantiated that the Romans, in their understanding of the limits of the exercise of subjective rights, worked the way upfrom giving absolute freedom in its exercise to identifying typical cases of unfair behavior and reasonably prohibiting it in case of intentionsto cause harm to others. Actually, the intentions to cause harm to another person by one’s actions became one of the reasons forthe legislative description by Roman lawyers of the proper use of subjective right and the introduction of targeted restrictions on itsexercise, especially in the field of real estate.The abovesaid is mainly related to the subject of material civil law, however, it also matters for understanding the general contextof the development of the doctrine of abuse of right. The issues of the procedure for the enforcement of law, though not separated frommaterial law, were slightly developed in Roman law. In this regard, the concept of a lawsuit was of particular importance to the Romans.It is significant that even in Roman law, when determining the procedure for adjudicating disputes, special attention was drawnto the possible unfair actions of the litigation parties and methods of dealing with such actions. It was mainly about typical cases of fi -ling a case without merit or objecting to it.The study indicates that in spite of the collapse of the Roman Empire, the main developments and achievements of Romanlawyers in the field of private law were not lost. On the contrary, later they came into widespread use. The evidence of it is, for example,the so-called Italian canonical trial.According to some researches, in the legislation of this period, one can also find the reference to the prohibition of chicanery,that is actions formally meeting legal requirements, but carried out solely for the purpose of causing harm.It is proved that the search for the most effective means of dealing with the abuse of right continued at a new stage in the deve -lopment of the legal system of European states and owing to their successful reception of Roman law. The civil procedural legislationof Germany, France and England, having adopted the Roman idea on preventing the unlawful exercise of subjective right, demonstratedthe main approaches to a possible solution to the problem of abuse of civil procedural rights.

On Tradition and the Conservation of Equity

Abstract: This paper explores the question whether the normativity of tradition gives us reasons to preserve the norms of equity (more or less) in their historical form, i.e., as separate from neighboring common law doctrines. The main target of the paper are arguments that call for the replacement of equity with other, arguably more successful, means for attaining the goals equity sets to achieve. It begins by showing that even liberal, progressive and rationalist people should see traditions as making a normative claim on us, as they can potentially possess both instrumental and non-instrumental value that goes over and above the content of the beliefs, rituals or forms of action which they uphold. The second part asks whether equity qua legal tradition exemplifies such value. I find that the unique combination of legal and moral tradition that we find in equity endows it with a great value as an agent for social cohesion, an instrument of coordination and a source of invaluable know-how knowledge. With reference to two concrete examples of alternatives to equity—the continental doctrine of abuse of rights and a good faith principle—I argue that the fact that equity has been the way we do things around here for so long makes it a better platform for reform than an implant from foreign system or a newly devised set of norms. If reform is needed, we should take equity as its starting point rather than wiping the slate clean and starting from scratch.

Taking Stock: Abuse of Process within the International Court of Justice

Abstract The doctrine of abuse of process, as a subsidiary concept of the principle of abuse of rights, is well established as a general principle of law and regularly invoked by member states in argument at the International Court of Justice (ICJ). Nonetheless, the ICJ has yet to uphold an argument founded upon the abuse of process. After conducting a general survey of the development of the doctrine of abuse of process around the globe, this article argues that the ICJ should seize upon the current global trend in which international courts and tribunals have sought to utilise the abuse of process doctrine as a feature of their inherent case management powers, and more readily make use of the doctrine to ensure that the integrity of proceedings is preserved before the ICJ.

ASSESSMENT REGARDING THE NULLITY OR INVALIDITY OF A GOVERNMENTAL ADMINISTRATIVE DECISION AND/OR ACTION

The concept of Nullity (Nietigheid) is very important in administrative law because of the validity of a government act (bestuurshandelingen) either in the form of a decision (besluit) or in the form of an action (Feitelijk Handelingen) depends on the existence of the doctrine regarding Nullity. Since when is a decision declared invalid, and what are the legal consequences, if this is answered by the existence of this Nullity doctrine. Law No. 30 of 2014 concerning Government Administration, has more or less changed the paradigm regarding the teachings of annulment from the one held by administrative law experts in Indonesia, especially with regard to the doctrine of abuse of power, which is regulated in several articles in the Government Administration Law. In this paper, it is found that government decisions and/or actions that are canceled or declared invalid have different consequences. This paper uses a normative juridical research method, namely using secondary data in the form of primary and secondary sources of law, both applicable laws and related literature.

Sustainable Obligations in (Dutch) Property Law

Private law does not operate in isolation. Throughout history, private lawyers have been aware of the limits of their field. In property law, this traditionally means referring to public law – especially public law limitations to property rights. The juxtaposition so created is that private law stands for freedom and autonomy and it is public law, in the form of constitutional law or administrative law, that forms most restrictions. With the exception of the doctrine of abuse of rights, for example, the ideas surrounding the right of ownership are virtually limitless. The owner is the person that can dispose over his property in the most absolute manner. In this contribution, I will first explore the theoretical foundations of property law and their importance (section 2). I will then turn to property and human flourishing (section 3), obligations in property law (section 4) and deal with the Dutch qualitative obligation (section 5).

신의칙의 파생원칙인 권리남용금지의 원칙의 효과에 관한 연구

신의칙의 파생원칙인 권리남용금지의 원칙의 효과에 관한 연구

Abuse of Companies Through Choice of Incorporation?

This paper explores the concept of abuse of law in the context of the choice of the state or country of incorporation: Can the choice of a particular jurisdiction constitute “abuse”? The case law of the Court of Justice of the European Union (CJEU) on the freedom of establishment for companies has in principle left open the possibility for the Member States to take measures against “abuse” at least in specific cases. We explore two scenarios. First, we highlight cross-border incorporations of private limited companies and look at the systemic consequences of a line of judicial decisions that started with Centros and compare them to regulatory competition and the role of ‘pseudo-foreign incorporation statutes’ in the United States. Second, we look at cross-border mergers, comparing them with ‘reverse mergers’ in the US, a phenomenon that some scholars and practitioners have considered problematic and that allows an ex post choice of jurisdiction for established corporations. While the number of firms making use of these opportunities has remained relatively small, the changes had a systemic effect. Restrictions on the choice of incorporation are often not designed to protect specific stakeholders of the firm (such as shareholders, employees, or creditors), but rather to protect the state’s lawmaking authority concerning companies (corporations) primarily active in its territory. Member States have historically employed restrictions on the choice of incorporation to discourage cross-border incorporations and to protect their laws from regulatory competition. Overall, the CJEU’s case law has left us with a vision for corporate law without space for a doctrine of abuse. The court’s vision is rooted in the idea that informed market participants are informed actors that understand that different laws govern forms of companies from different countries and adjust their expectations accordingly. This ‘self-protection’ model may be at odds with many Continental European traditions but was likely an inevitable consequence of the freedom of establishment. Nevertheless, Member States have been able to able to compensate for the loss of control over some aspects of the law of business organization through insolvencification. Consequently, there does not appear to be a strong need to extend abuse of law as a doctrinal mechanism.

The Doctrine of Abuse of Rights and Corporate Restructuring: Subtle Demarcation between Legitimate and Abusive Exercises of Rights to Access International Investment Arbitration

When applying to corporate restructuring, the doctrine of abuse of rights seems to produce a reasonable outcome. However, a careful reading of the decisions seeking recourse to it shows that there are flaws therein. It is unnecessary, in some cases, to bring the doctrine into play from the outset as there exists a more proper tool, i.e., jurisdiction ratione temporis. In others, there is confusion caused by the interchangeable use of “abuse of rights” and “abuse of process.” Besides, applying the doctrine for the purpose of preventing investors from submitting a dispute that has been foreseeable to international investment arbitration raises both legal and policy issues. For the former, the foreseeability test allows individual tribunals to select facts that they deem relevant. In addition, conventional elements of an abuse in the context of international investment do not include a harm caused by claimant investors, which we propose otherwise. For the latter, it is worth considering whether more weight should be given to corporate restructuring for international investment arbitration purposes even if the dispute has been foreseeable.

From Supra-Constitutional Principles to the Misuse of Constituent Power in Israel

Israel has no one official document known as ‘the Constitution’ and for nearly half a century was based on the principle of parliamentary sovereignty. Still, since the “constitutional revolution” of the 1990s, Israel’s supreme norms are expressed in its basic laws and laws are subject to judicial review. This situation is the result of the enactment of two basic laws dealing with human rights in 1992- which included a limitation clause - and of a judicial decision of monumental significance in 1995, the Bank Hamizrahi case. At that decision the Supreme Court stated that all basic laws - even if not entrenched - have constitutional status, and therefore the currently accepted approach is that the Knesset indeed dons two hats, functioning as both a legislature and a constituent authority. The novelty of the Bank Hamizrahi decision lies in its notion of a permanent, ongoing constituent authority. The Knesset actually holds the powers of a constitutional assembly, and legislation titled “Basic-Law” is the product of constituent power. Though it is neither complete nor perfect, Israel’s constitution - that is, basic laws - addresses a substantial number of the issues covered by formal constitutions of other democratic states. Furthermore, though this formal constitution is weak and limited, it is nonetheless a constitution that defends the most important human rights through effective judicial review. Still, given the ease with which changes can be made to basic laws, the special standing of basic laws differs from the standing generally conferred on a constitution. Most basic laws are not entrenched, which means that the Knesset can alter a basic law by a regular majority. Over the past few years, there has been a tendency towards ad casum amendments of basic laws. These amendments are usually adopted against a background of political events that demand an immediate response on the part of the Knesset. The latter then chooses the path of constitutional-not regular-legislation, which is governed by a relatively smooth legislative passage procedure. Even provisional constitutional amendments were passed with relative ease followed by petitions presented to the Supreme Court arguing that the Knesset’s constituent power is actually being “abused”. These petitions, as well as Israel’s peculiar constitutional development, presented the Supreme Court with several questions as to the power for judicial review of basic laws. Thus far, the Court’s endorsement of judicial review was based on the limitation clause found in both basic laws on human rights, but limitation clauses do not establish the criteria for a constitutional violation by constitution provisions. Does this mean that the Knesset’s constituent power is omnipotent? This paper examines the almost unique position of Israeli jurisprudence in relation to the doctrine of “unconstitutional constitutional amendments.” It focuses on the possibility of applying the doctrine in the Israeli case-laws, the often-raised notion of ‘supra-constitutional’ values that would limit the Knesset’s constituent power, and a third – newly created – doctrine of abuse (or misuse) of constituent power. A central claim of the paper is that in light of the unbearable ease by which basic laws can be amended in Israel, there is an increased justification for judicial review of basic laws.

From Supra-Constitutional Principles to the Misuse of Constituent Power in Israel

Israel has no one official document known as ‘the Constitution’ and for nearly half a century was based on the principle of parliamentary sovereignty. Still, since the “constitutional revolution” of the 1990s, Israel’s supreme norms are expressed in its basic laws and laws are subject to judicial review. This situation is the result of the enactment of two basic laws dealing with human rights in 1992- which included a limitation clause - and of a judicial decision of monumental significance in 1995, the Bank Hamizrahi case. At that decision the Supreme Court stated that all basic laws - even if not entrenched - have constitutional status, and therefore the currently accepted approach is that the Knesset indeed dons two hats, functioning as both a legislature and a constituent authority. The novelty of the Bank Hamizrahi decision lies in its notion of a permanent, ongoing constituent authority. The Knesset actually holds the powers of a constitutional assembly, and legislation titled “Basic-Law” is the product of constituent power. Though it is neither complete nor perfect, Israel’s constitution - that is, basic laws - addresses a substantial number of the issues covered by formal constitutions of other democratic states. Furthermore, though this formal constitution is weak and limited, it is nonetheless a constitution that defends the most important human rights through effective judicial review. Still, given the ease with which changes can be made to basic laws, the special standing of basic laws differs from the standing generally conferred on a constitution. Most basic laws are not entrenched, which means that the Knesset can alter a basic law by a regular majority. Over the past few years, there has been a tendency towards ad casum amendments of basic laws. These amendments are usually adopted against a background of political events that demand an immediate response on the part of the Knesset. The latter then chooses the path of constitutional-not regular-legislation, which is governed by a relatively smooth legislative passage procedure. Even provisional constitutional amendments were passed with relative ease followed by petitions presented to the Supreme Court arguing that the Knesset’s constituent power is actually being “abused”. These petitions, as well as Israel’s peculiar constitutional development, presented the Supreme Court with several questions as to the power for judicial review of basic laws. Thus far, the Court’s endorsement of judicial review was based on the limitation clause found in both basic laws on human rights, but limitation clauses do not establish the criteria for a constitutional violation by constitution provisions. Does this mean that the Knesset’s constituent power is omnipotent? This paper examines the almost unique position of Israeli jurisprudence in relation to the doctrine of “unconstitutional constitutional amendments.” It focuses on the possibility of applying the doctrine in the Israeli case-laws, the often-raised notion of ‘supra-constitutional’ values that would limit the Knesset’s constituent power, and a third – newly created – doctrine of abuse (or misuse) of constituent power. A central claim of the paper is that in light of the unbearable ease by which basic laws can be amended in Israel, there is an increased justification for judicial review of basic laws.

From Abuse of Right to European Copyright Misuse: A New Doctrine for EU Copyright Law

The great expansion of EU copyright law has paved the way to several rightholders’ abusive or dysfunctional conducts, without providing adequate solutions to prevent or remedy them. The answer of EU sources is characterized by extreme fragmentation, with tools mostly borrowed from external bodies of law. Paradoxically, the doctrine of abuse of right has long been neglected as a potential solution, mainly due to its flaws – difficult evidence-taking and weak remedies - and its incompatibility with the discretionary nature of continental author’s rights. Yet, the notion emerges between the lines of several ECJ’s decisions, and finds its way from civil codes to copyright in a number of national courts’ precedents. Due to the paradigm shift towards a market-oriented and industry-based inspiration, EU copyright seems now open to admit the possibility of misuses.Starting from these premises, this article argues that a unitary doctrine of copyright misuse may constitute an effective balancing tool for most of the dysfunctional conducts that copyright law and other bodies of law are still unable to resolve. In addition, it may also act as regulatory paradigm to ensure greater certainty and transparency in the judicial development of key principles and rules of EU copyright law. To this end, the paper (a) proposes a four-prong-test of abusiveness, embedding criteria of proportionality and reasonableness inspired to the normative function(s) of exclusive rights; (b) offers new perspectives on potential remedies; and (c) shows selected examples of the positive impact of the doctrine on the systematization of the current copyright legislative framework.