Doctrine Of Binding Precedent Research Articles

The Authority of “Precedent” in International Adjudication: the Contentious Case of the WTO Appellate Body’s Practice

Abstract One of the reasons adduced by the U.S. for paralyzing the WTO Appellate Body (AB) through the non-replacement of its outgoing members has been that the AB has developed a doctrine of binding precedent based on its previous decisions, thus allegedly departing from what had been agreed in the original negotiations. This article, based also on the author’s past experience as a member of the AB, intends to show that this criticism is groundless. The AB has not followed such a doctrine but has developed a consistent interpretation of the multilateral trade agreements in accordance with the WTO objectives of promoting stability and predictability of the system. The AB statement that past interpretation of the WTO agreements provisions should be followed by Panels “absent cogent reasons” is in line with the practice of other international courts and tribunals.

Application of the Doctrine of Binding Precedent in Malaysia: A Re-Evaluation

This paper aims to analyze the issues concerning the implementation of binding precedent in Malaysian cases, and propose a re-evaluation of the binding precedent doctrine. The qualitative approach was employed to indicate the issues related to the doctrine of binding precedent by analyzing relevant cases. These cases were selected to propose the re-evaluation of the binding precedent doctrine as practiced by the Malaysian dual-judicial system. The main issue to be discussed regarding the doctrine of binding precedent is interference by the Civil Court on Islamic matters and Syariah Court decisions, which lead to inconsistency in judgments, even after the amendment of Article 121(1A) of the Federal Constitution. This study proposes that the application of binding precedent should be re-evaluated to ensure that the principles of justice are upheld. Court judges should decide cases based on merit, and only use previous judgments as guidance for present and future cases.

Dissenting Opinions in Constitutional Courts

Although long considered alien to the civil law tradition, the publication of separate dissenting or concurring opinions is now permitted by the majority of European constitutional courts, the only exceptions being the Austrian, Belgian, French, Italian, and Luxembourgish constitutional courts. The decades-long history of dissenting opinions in the practice of several European constitutional courts calls for an analysis. While there is an extensive literature in the United States regarding the use of dissenting opinions, comprehensive empirical research is still absent in Europe. American scholars have conducted research from several different points of view. Legal scholars have dealt primarily with the relationship between dissenting opinions and the doctrine of binding precedent, and have tried to solve the problem of the precedential value of plurality decisions, e.g. decisions lacking a reasoning shared by the majority of the judges. Political scientists, for their part, have studied the policy-making role of judges and strategic opinion-writing. Scholars of law and economics have analyzed the costs and benefits of writing separately. Even judges themselves have often expressed their own thoughts in essays or conference speeches on the matter.

Authority, Process and Method: Studies in Jewish Law

The articles in this volume were originally published in Hebrew in Shenaton Hamishpat Haivri and address Jewish law, both in its own context and in the context of contemporary jurisprudence. Contributions range from discussion of the rabbincal court to the doctrine of binding precedent, and from the basis of judicial authority to the legal defence of ignorance of the law.

Thai-Europe Tapioca Service Limited v. Government of Pakistan, Ministry of Food and Agriculture Directorate of Agricultural Supplies (Imports and Shipping Wing) (The Harmattan)

81Sovereign immunity — Absolute theory — Whether may exceptions recognized by English law — Commercial transaction — Whether sovereign immunity applicable — Transaction unconnected with England — Capacity of the English courts to develop exceptions to the general principle of sovereign immunity — Foreign States — Government department succeeding to rights and duties of government-owned corporation — Whether entitled to sovereign immunity — International law in general — Relation to municipal law — Incorporation and transformation doctrines — Doctrine of binding precedent — Whether English courts bound by earlier decisions relating to international law — The law of England

Trendtex Trading Corporation v. Central Bank of Nigeria

111Sovereign immunity — Restrictive theory — Whether part of modern International law — Whether applicable in English courts — Distinction between acta iure imperii and iure gestionis — Whether based upon nature or purpose of transaction — Agencies of foreign State — Central Bank — Whether entitled to sovereign immunityInternational law in general — Relation to municipal law — Customary international law — Whether part of the law of England — Whether English courts entitled to give effect to changes in the rules of international law — Doctrines of transformation and incorporation — Doctrine of binding precedent — Applicability when English courts consider international law — The law of England

The Status of Rules of Precedent

In a recent article in the Cambridge Law Journal, Laurence Goldstein argues that four problems of legal theory which are supposed to present elements of paradox are capable of a reasonably simple solution. I am interested here in only one of the problems discussed by Goldstein: that concerning the status of the rules of precedent. I agree with Goldstein that this problem has a reasonably simple solution: but I disagree with the solution he proposes. (Broadly this is that pronouncements on precedent do not establish rules of law.) I propose in this short article to offer what I believe to be a correct solution to this problem. The solution proposed is one which has already been suggested by A. W. B. Simpson in 1961 in “The Ratio Decidendi of a Case and the Doctrine of Binding Precedent” but there is, I believe, a defect in Simpson's formulation of the argument for it, which has impeded its general acceptance. In any event, as there is clearly still controversy about the issue, it seems worthwhile restating this solution with fresh arguments. I will first discuss the problem, then its proposed solution, then Simpson's discussion of the topic, and finally some further questions which are suggested by the proposed solution.

Swiss Israel Trade Bank v. Government of Salta and Banco Provincial De Salta

International law in general — Relation to Municipal law — Customary International law relating to sovereign immunity-Effect on earlier decisions of municipal courts — Doctrine of binding precedent — Whether judge of first instance empowered to apply customary International law rather than precedents — The law of EnglandJurisdiction — Territorial — Exemptions from — Foreign States — Province of federal State — Provincial government of Argentine Republic — Bank created by legislation — Relevance of lack of Governmental control of bank — Whether Government or bank entitled to immunity — The law of England