Federal Courts Research Articles

Full Federal Court Allows PepsiCo’s Appeal and Reverses Decision to Impose Royalty Withholding Tax and Diverted Profits Tax on “Embedded Royalties”

In PepsiCo, Inc v. Commissioner of Taxation, the Full Federal Court has allowed PepsiCo’s appeal against the decision of Moshinsky J at first instance, ruling that: (i) no portion of payments made to PepsiCo under an Exclusive Bottling Agreement by an unrelated bottler and distributor – for syrup concentrate for manufacturing soft drinks – was a “royalty” for Australian royalty withholding tax (RWHT) purposes and (ii) PepsiCo did not obtain a “tax benefit” by not paying RWHT and therefore was not liable to pay diverted profits tax (DPT). The decisions of the Full Court and the trial judge are the first to consider the Australian tax treatment of “embedded royalties” and the DPT rules (which were introduced in 2017) and include detailed reviews of the tax issues raised by the licensing of valuable trademarks and intellectual property.

CRISE DO MODELO PROIBICIONISTA NA LEI DE DROGAS BRASILEIRA (LEI Nº 11.343/2006): A SITUAÇÃO NO ESTADO DO MATO GROSSO DO SUL

This paper aims to present a socioeconomic profile of individuals prosecuted in the state of Mato Grosso do Sul for the crime of transnational drug trafficking. The foundations and results of the adoption of the prohibitionist criminal policy model regarding drugs are presented. Furthermore, given the failure of this model, possible alternatives are presented, with special emphasis on harm reduction policies and the decriminalization of drugs, including the judgment of Extraordinary Appeal 635.659/SP, by the Supreme Federal Court, which dealt with the possession and carrying of marijuana for personal use.

A DISCUSSÃO SOBRE A INCLUSÃO NO POLO PASSIVO DE SÓCIOS OU EMPRESAS COM ATIVIDADE DIVERSA DO MESMO GRUPO ECONÔMICO NA FASE EXECUTÓRIA

Given the cancellation of TST Precedent 205, which addressed the inclusion of companies within the same economic group at the enforcement stage of labor proceedings, there have been numerous rulings regarding whether or not to include companies that did not participate in the initial phase of recognition in the case. Over time, the judiciary has faced instances of execution fraud in proceedings, and to address these abusive practices, judicial mechanisms have been applied to recover executions. Eventually, the Supreme Federal Court recognized this as a matter of legislative repercussion in Extraordinary Appeal (RE) No. 1387795/MG, leading to a legal debate among the courts regarding the issue. This research is qualitative, using bibliographic and documentary methods. The research system allows for analysis from a general to a specific format, based on doctrines and decisions of Brazilian courts. The study analyzes the joint liability between companies within an economic group, including those that did not directly participate in the case from the initial stage. It highlights issues such as hidden partners and companies with different activities, examining whether the current legislation allows for the inclusion of service-recipient companies. Ultimately, it evaluates whether execution is feasible under this type of liability. The research concludes by examining these discussions and highlighting the study's importance in bringing benefits to labor law and labor process.

UMA ANÁLISE DA EVOLUÇÃO DA JURISPRUDÊNCIA DO STF EM MATÉRIA DE INCONSTITUCIONALIDADE POR VÍCIO FORMAL E SEUS EFEITOS JURÍDICOS

The Supreme Federal Court (STF) has played a crucial role in analyzing and controlling the constitutionality of normative acts in Brazil. Formal defect unconstitutionality, in particular, has been a recurring and relevant theme in the Court’s jurisprudential discussions. This article aims to analyze the evolution of STF jurisprudence on formal defect unconstitutionality, with an emphasis on the legal effects generated by such decisions.

The Phenomenon of Model Legislative Acts of the Interparliamentary Assembly of the Commonwealth of Independent States in Decisions of Courts of the Russian Federation

This study is focused at studying decisions of courts of the Russian Federation, containing references to model legislative acts and other documents of the Interparliamentary Assembly of the Commonwealth of Independent States (hereinafter referred to as the IPA CIS).Aim. Determine the types of appeals by courts of the Russian Federation to the texts of the recommendatory acts of the IPA CIS, adopted for the purpose of forming and implementing coordinated legislative activity on issues of common interest to the member states of the organization.Tasks. Collect and study acts of the Constitutional Court of the Russian Federation, the Supreme Court of the Russian Federation, as well as the system of federal courts of general jurisdiction and arbitration courts headed by it.Methods. The disclosure of the main trends in the courts’ resort to model laws and other documents of the CIS IPA occurred according to the following criteria: level and type of court that adopted the decision; the entity on whose initiative the appeal to the model act of the CIS IPA took place, as well as the consequences of the initiative on the part of the applicant or other participant in the process; the meaning (variant of manifestation) of the model document in the court ruling.Results. The study showed that courts at all levels of the judicial system of the Russian adopted decrees, rulings and decisions adopted in constitutional, civil, criminal and administrative proceedings, the content of which included references to model legal provisions. The initiative to use model legal norms came both from the court and from other participants in the process.Conclusion. The court decisions collected for the study presented different options for the use of model laws and other documents of the CIS IPA by courts, which provides grounds for redetermination of the nature of model legislative acts of the CIS IPA.

REGIME PROGRESSION AFTER THE ENTRY INTO FORCE OF THE ANTI-CRIME PACKAGE – LAW NO. 13,964/2019, SPECIAL REGIME PROGRESSION AND ITS BENEFICIAL ASPECTS

The main purpose of this article is to analyze the changes that the Anticrime Package, Law No. 13,964/2019, in force since January 23, 2020, brought to the scope of criminal enforcement, regarding regime progression, analyzing the beneficial aspect for inmates, based on the interpretation of the Superior Courts, as well as the progression of a special regime, regarding women, and the interpretation of the Supreme Federal Court in the use of analogy in malam partem. And in order to achieve the desired proposal, the following specific objectives are followed: to make a retrospective of the fractions applied in regime progressions, in common crimes and heinous crimes, whether repeat offenders or not, highlighting the changes that have occurred, research in doctrines and jurisprudence.

AS DIFICULDADES DA EFETIVA IMPLANTAÇÃO DO JUIZ DE GARANTIAS NO JUDICIÁRIO BRASILEIRO

The Law 13.964, of December 24, 2019, known as the Anti-Crime Package, introduced into the current Brazilian Code of Criminal Procedure the institution called the judge of guarantees, aiming to provide greater impartiality in judgment throughout all phases of criminal prosecution, as there will be one judge for the inquisitorial phase (police/investigation) and another judge for the procedural phase, thus improving the accusatory system in the legal framework. This institution gained special prominence after the judgment by the Supreme Federal Court (STF) of the four Direct Actions of Unconstitutionality (ADIs 6298, 6299, 6300, and 6305). From these rulings, it was defined what is constitutional and what is unconstitutional in Law No. 13.964/2019, as well as being considered a mandatory rule establishing a deadline for the implementation and operation of the judge of guarantees throughout the country. The issue to be analyzed will be whether the Brazilian legal system is prepared for the implementation of the judge of guarantees? The general objective will be to understand the structural, budgetary, and staffing difficulties, as well as the legislative competence dialectic regarding the implementation of the judge of guarantees in the Brazilian judicial system, for its effective implementation within the deadline established by the Supreme Federal Court. The specific objectives are to assess the obstacles and difficulties in the physical structures of courts and judicial divisions, point out budgetary difficulties, and the challenges related to the number of court and division staff. The methodology will follow the deductive method, using bibliographic research, with an exploratory objective, qualitative approach, basic nature, and systematic literature review, encompassing academic articles, books, and legal documents.

A ADOÇÃO POR CASAIS HOMOAFETIVOS SOB A PERSPECTIVA DO DIREITO DE FAMÍLIA

Adoption by same-sex couples, from the perspective of Family Law, represents a significant advancement in equality of rights and recognition of diverse family forms. In many countries, Family Law has evolved to include same-sex couples in the adoption process, allowing them to form families and secure rights similar to those of heterosexual couples. Historically, same-sex couples have faced legal and social barriers to adopting children. However, case law and legislation have advanced, reflecting greater acceptance and understanding of same- sex relationships. For instance, Brazil’s Supreme Federal Court has ruled favorably on adoption by samesex couples, recognizing the validity of these unions and ensuring they can legally form a family. The decision to allow adoption by same-sex couples is based on the principle that the child's best interest should prevail. The ability to provide a loving and stable environment is considered more important than the adoptive parents' sexual orientation. Studies have shown that children adopted by same-sex couples develop as healthily as those adopted by heterosexual couples. Furthermore, legal recognition of adoption by same-sex couples contributes to the protection of children’s rights, ensuring they have access to all legal and social benefits provided by law.

Thomas Brassey, the Hausenstein tunnel and the Swiss Federal Court

It has recently been suggested that the work of Thomas Brassey, a major nineteenth century contractor, is worthy of further study. Unfortunately he instructed that his papers should be destroyed upon his death. However court papers were published concerning his claim against his client for compensation for additional costs as the result of adverse ground conditions during the construction of the Hauenstein tunnel in Switzerland and his client’s counterclaim for the effects of late completion. These documents, along with a descriptive account written by the client’s former section engineers, enable a reconstruction of events placed in their geological and contractual background. The developing breakdown of the relationship between contractor and client is apparent. The content of the claim, counterclaim and court decision are summarised. Aspects of the character of Brassey revealed are found to differ from the descriptions provided by his nineteeth century biographer.

Epistemological Misunderstandings of the German Federal Court of Justice in Criminal Cases Regarding the Null Hypothesis: Verification in the Credibility Assessment

Epistemological Misunderstandings of the German Federal Court of Justice in Criminal Cases Regarding the Null Hypothesis: Verification in the Credibility Assessment Abstract: Background: The article deals with the decision of the German Federal Court of Justice (Bundesgerichtshof, BGH) in criminal matters regarding credibility assessment dated 30 July 1999 (1 StR 618/98, BGHSt 45, 164). Regarding criminal matters, the BGH formulated specific requirements for credibility assessments based on two published scientific expert reports. Method: We analyzed conflicting postulates of scientific theory in the expert reports and the reception of these principles in the BGH judgment by examining the original quotes. Results: Given the central importance of this BGH decision, we analyzed the original expert reports for their epistemological content. The BGH formulated the scientific approach of starting from the assumption that the statement is untrue - the so-called "null hypothesis". In doing so, it referred to Popper's deductivism, albeit without addressing the rules of hypothesis testing. Based on the second expert report, which argues for inductive.

Title VII and Religious Accommodations in the Workplace After Groff v. Dejoy (2023)

The United States Supreme Court in Groff v. DeJoy rejected a 50-year precedent regarding the application of Title VII of the United States Civil Rights to requests by private and public employees for Title VII workplace religious accommodations. The article evaluates the impact of 73 U.S. District Court and U.S. Court of Appeals decisions decided after Groff to determine whether Groff has had an impact on how lower federal courts have evaluated requests for Title VII workplace religious accommodations. The article also evaluates the role of U.S. District Courts as gatekeepers for Title VII workplace religious accommodation lawsuits. Finally, the article discusses the impact of Groff on the most common types of workplace religious accommodation requests. The article argues that employers will have greater difficulty persuading U.S. District Court to grant motions to dismiss or motions for summary judgment to end Title religious accommodation lawsuits.

Retaliation in workplace sexual assault: The effect of #MeToo on federal court cases in the United States

The number of federal claims filed with the Equal Employment Opportunity Commission (EEOC) in the United States by alleged victims of workplace sexual assault increased following the #MeToo movement along with allegations of retaliation by employers against these victims for making formal claims of sexual discrimination. This study distinctively presents an examination, not of the number of EEOC claims, but instead those claims which became federal court cases over the last three years in which a claims of workplace retaliation were alleged because of sexual assault in the workplace. The study provides an empirical examination of numerous characteristics, related factors, and outcomes of such retaliation cases involving sexual assault in the contemporary #MeToo era. The implications of these diverse results are advanced along with recommendations for employers and employees alike.

Zarys modelu zaskarżania orzeczeń sądowych wydanych w pierwszej instancji w postępowaniu cywilnym przed sądami federalnymi w Stanach Zjednoczonych. Analiza prawnoporównawcza i postulaty de lege ferenda

The article aims to formulate a proposal to improve the model of appealing judgments currently operating in Polish civil proceedings on the basis of the solutions in place in federal court proceedings in the United States. With the use of the analysis of relevant statutes and secondary legislation, case law and views of legal scholars, the most important aspects of the topic were presented with comparison to the Polish civil procedure regulations. As a result of the analysis appeals as of right and by permission were distinguished, the latter not being present in Polish civil proceedings, and de lege ferenda suggestions based on American solutions were formulated regarding the Polish civil proceedings.

Judicial review as a quasi-administrative jurisdiction

This article challenges the idea that judicial review is purely judicial and adversarial in nature. Instead, I argue that recent doctrinal and remedial changes to judicial review suggest that courts hold a quasi-administrative jurisdiction. By a quasi-administrative jurisdiction, I mean one that prospectively, and retrospectively, aids and advises on the execution of public administration. For example, the Federal Court in Canada (Citizenship and Immigration) v Mason suggested that federal tribunals should start using the advisory reference procedure found in section 18.3(1) of the 1985 Federal Courts Act to resolve ‘dueling administrative interpretations’ of their home statutes. Canadian courts have also started to remit cases back to administrative decision makers with specific instructions explaining how they are to proceed upon redetermination, thereby structuring and advising on the proper exercise of discretion. The existence of these quasi-administrative remedies requires us to rethink Lon Fuller’s contention that the form of adjudication is inherently bilateral, adversarial, and retrospective. Fuller’s contention was based on the claim that arguments in court are ordinarily presented in the form of claims of right in the disputant’s favour. However, I argue that, in public law adjudication, arguments are presented in the form of claims of legitimate authority in the public interest. This establishes judicial review on what I term a multilateral, collaborative, and prospective form of adjudication. This form suggests that the court is in fact suited to exercising quasi-administrative functions.

Upstream Review of intra-EU ICSID Arbitrations and Its Consequences: A Commentary on the Order of the Bundesgerichtshof (German Federal Court of Justice) in I ZB 43/22 MAINSTREAM Renewable Power et al. v. Germany

EU Member States may have recourse to ‘upstream’ national judicial protection under the German Civil Procedure Code to declare inadmissible and thereby preclude intra-EU investment arbitration proceedings brought under the auspices of the International Centre for Settlement of Investment Disputes (ICSID) Convention. That remarkable conclusion by the Bundesgerichtshof (German Federal Court of Justice) constitutes the first attempt of a higher court of an EU Member State to render compatible the seemingly contradictory obligations on national courts arising from EU law and the ICSID Convention. However, even more important than the court’s conformity assessment are the inherent consequences of its conclusion: the incompatibility of the ICSID Convention with EU law and the obligation, on all EU Member States and their institutions, to disapply that convention in intra-EU investment arbitration matters and ultimately to denounce it collectively.

Medical and social aspects of euthanasia of palliative patients in the Netherlands, Belgium and Germany

In the palliative and hospice medicine of Ukraine, there are a number of unresolved legal and organizational problems that stand in the way of a dignified existence of hopelessly ill patients in the last days and months of their lives. First of all, these are unresolved issues with the coverage of treatment and care of a sufficient number of categories of patients: palliative care is provided mainly to patients with oncological, cardiovascular and neurological profiles of treatment. Secondly, it is the lack of adequate analgesia for a significant number of inpatients and the vast majority of patients receiving treatment at home. Availability of recently legalized medical cannabis remains low for palliative care patients, and palliative care euthanasia is not legalized. In our previous research, we found out that Ukrainian society is not ready for a dialogue about the need to legalize euthanasia, and that the best model of preparing society for euthanasia is the Canadian one, which is based on a comprehensive study of the opinions of the general public and direct participants of the Medical Assistance in Dying (MAiD), as well as on the implementation of decisions federal court. The article is devoted to legal procedures and socio-medical aspects of euthanasia and MAiD in the Netherlands, Belgium and Germany. Certain aspects of legalization, its context and circumstances, compared with the conditions of Ukraine. The article is an original theoretical study performed using the method of systematic analysis, comparative and bibliosemantic methods. Note that we are clarifying the terminology of the previous stages of the study: MAiD is performed by the patient himself, euthanasia is performed by the doctor. In our opinion, Ukraine needs the legalization of euthanasia and MAiD for all age categories, and with the implementation of special additional consent procedures for adult incapacitated patients. In the experience of the countries of the current comparison, we paid special attention to the prevention of abuses in the implementation of these procedures, in the conditions of frequent disregard for the norms of the law since the beginning of the war. Keywords: palliative and hospice care, suicides of palliative patients, Medical Assistance in Dying, right to life, right to die.

A inclusão (tácita) do município à competência legislativa para proteção e defesa da saúde: análise sob o binômio urgência e popularização

Objective: this study analyzes the federalist decentralization materialized by decisions of the Brazilian Supreme Federal Court rendered during the SARS-CoV-2 virus pandemic. In this context, the aim is to consider the possibility of tacitly including municipalities within the concurrent legislative competence in the area of health, based on the elements of popularization and urgency. Methods: the study is based on bibliographic research – legal and public health doctrine – and legislative research, as well as ex post facto research, analyzing the causes and effects of Direct Action of Unconstitutionality 6.341, Allegation of Violation of Fundamental Precept 672, and Original Civil Action 3.451, all grounded in cooperative federalism. Results: as a result, the recognition of the municipality's duty to legislate in defense of health, especially in the inertia of other entities and limited only by regulatory agencies, and the existence of a delaying clash between legislative incompetence, urgency and popularization of the health system. Conclusion: it was concluded that the municipality was tacitly included in the legislative competence in the area of health by the decisions of the STF. Submission: 01/23/24| Review: 08/16/24| Approval: 08/16/24

REFORMULANDO O JOGO TRIBUTÁRIO: DESAFIOS E SOLUÇÕES NAS TRANSAÇÕES DE GAMES ON-LINE

In recent years, computer games have gained widespread popularity, driven by technological advancements and internet expansion, leading to the prevalence of on-line gaming and the decline of physical media. The taxation of these games has become a debated issue, particularly regarding the differentiation between off-the-shelf and custom software. In 2021, the Brazilian Supreme Federal Court deemed software taxable as services. Uncertainties have arisen regarding in-game transactions, encompassing the acquisition of goods, rights, or financial operations. This article aims to understand whether transactions in on-line games qualify as the acquisition of goods or services, determining the applicable taxes, considering the Brazilian legal landscape post-Tax Reform. Specific objectives include grasping technical distinctions between goods, commodities, and services; conceptualizing and distinguishing software and on-line games from a technological perspective; outlining types of transactions in on-line games to support their legal classification; understanding the Supreme Court's rationale on software as services; and analyzing the impact of the Tax Reform on the taxation of in-game transactions. The research, characterized as pure and explanatory, employs a qualitative approach, deductive method, and bibliographic/documentary procedures. It concludes that the accurate taxation of on-line gaming transactions is a significant source of legal uncertainty, stemming from the classification and legality of tax incidence. The Tax Reform, by instituting a single tax for operations involving goods, services, and rights, holds the potential to resolve these uncertainties, rendering unnecessary the determination of the nature of operations for tax purposes.

Preventive Care Coverage Threatened by Federal Court Ruling

This Viewpoint highlights the 2 most concerning aspects of the Braidwood Management Inc v Becerra ruling and their potential effect on health equity.

LEGAL CONTROVERSIES IN CROSS-BORDER SURROGACY: A CENTRAL EUROPEAN PERSPECTIVE ON THE RECOGNITION OF LEGAL PARENTHOOD THROUGH SURROGACY ESTABLISHED ABROAD

Background: This paper explores the legal field of surrogacy from a Central European perspective, focusing on how countries such as Austria, Germany, and Switzerland address the recognition of parental status established abroad. While the prevailing attitude among Central European states is to prohibit surrogacy within their national laws, there is an increasing tendency to bypass these bans by seeking surrogacy services abroad. This phenomenon, termed reproductive tourism, raises complex legal questions about the recognition of foreign parental status determinations. Methods: The methods used include a comprehensive review of international and autonomous national legal rules as well as a comparative analysis of case law from Central European courts regarding cross-border surrogacy and parenthood recognition. The study examines legal controversies employing Austrian family law as an example to assess highly topical issues arising from surrogacy. It incorporates data from various legal sources, including the Austrian Constitutional Court, the German Federal Court of Justice, the Swiss Federal Supreme Court, and the European Court of Human Rights. Results and conclusions: The findings reveal significant differences between Austria, Germany, and Switzerland regarding the recognition of parental status established by way of surrogacy abroad. While supreme court decisions in these countries tend to prioritise the best interests of the child – often recognising foreign surrogacy arrangements to avoid leaving children without legal parents – their judicial approaches differ considerably. The Austrian Constitutional Court adopts a more inclusive approach by accepting foreign determinations from any authority, such as birth certificates, under the concept of automatic recognition. In contrast, the German and Swiss supreme courts acknowledge only formal court decisions. For cross-border surrogacy cases that do not fulfil this requirement, these countries apply the national law of the child's habitual residence or, as a fallback, the law of the intended parents’ country of origin. Since both German and Swiss law categorically forbid surrogacy, only the genetic father is typically recognised, while the intended mother is directed to adoption. This aligns with the opinion of the ECtHR, which still considers the method of establishing parenthood to be within the sovereignty of a state. This article advocates for a balanced approach that respects both the legal principles of national states and the fundamental rights of children born through an arrangement with a surrogate mother in another country.