Foreign Case Law Research Articles

Decoding Judicial Cross-Citations: How Do European Judges Engage with Foreign Case Law?

Decoding Judicial Cross-Citations: How Do European Judges Engage with Foreign Case Law?

The adoption of foreign case law by the Greek courts and the emergence of the Existenzminimum doctrine by numbers - Between constitutional interpretation and legitimacy

Abstract The study is divided in two major parts. First, a presentation of the history of the Greek legal order and the organization of the judicial system with a focus on the judicial system of control of constitutionality highlights the legal culture regarding the use of foreign precedents in constitutional cases, describes the complexities regarding the exercise of control of constitutionality, and justifies the reasons that the constitutional case law of the Council of State (CoS) is selected for quantitative measurement. Second, the study analyses from a quantitative and qualitative perspective the results of the measurement of the number of explicit citations in foreign precedents in the constitutional cases of the CoS. It is worth noting that the majority of the citations in German case law refer to the case law of the Existenzminimum, a finding that is being approached from a qualitative perspective too.

국제물품매매계약에 관한 UN협약의 적용을 위한 내적흠결과 외적흠결에 대한 판례 경향

Purpose : In international sales contracts, even though the United Nations Convention on Contracts for the International Sale of Goods (CISG) is primarily applied, issues arise when the CISG lacks specific regulations or when its substantive content is insufficient. This study examines foreign case law related to such external and internal defects within the CISG framework.
 Research design, data, methodology : In the 2021 Supreme Court decision (case number 2021다269388), the court highlighted the lower courts' failure to consider international legal elements and instead applying domestic law to international sales contracts. In this study, we analyzed foreign case law concerning the issues of applying the CISG versus domestic law, as well as external and internal defects in the context of these laws.
 Results : Through this research, we were able to review case law from various countries regarding the preferential application of the CISG in international sales contracts. Additionally, in many cases involving external and internal defects, we observed the application of domestic law in accordance with principles of private international law, or the necessity to apply other international conventions.
 Conclusions : This research underscores the importance of a deep understanding and knowledge for the appropriate application and interpretation of the CISG in international transactions. It suggests the need for an international and comprehensive approach to legal issues related to international trade in the future, emphasizing the significance of understanding the application of international law both in education and in practice.

Zasada neminem laedere a ochrona dóbr osobistych osoby fizycznej

Polish and foreign case-law as well as legal doctrine sometimes present the opinion that in the law of torts a universally binding duty exists not to cause harm to others (the neminem laedere principle). Its breach is supposed to determine the wrongfulness of the tortfeasor's behaviour. The purpose of the article is to analyse whether this principle may be applicable to the protection of personality rights. Due to different ways of understanding in jurisprudence what this principle consists of, the potential application of two concepts was considered. Firstly, if in the legal system there is a general norm of behaviour prohibiting the infringement of another individual's personality rights. Secondly, if there is a general norm of behaviour not to cause others non-pecuniary damage (including immaterial harm - pain and suffering). The neminem laedere principle is not a general principle of Polish law and is also not applicable to the protection of personality rights. This principle can be regarded only as a moral imperative and a postulate for the harmonious coexistence of individuals in society rather than a legal duty.

B Foreign Case Law Germany: Bundesgerichtshof, Beschluss KZB 75/21, verkündet am 27. September 2022 [Award partially quashed for violating public policy due to the misapplication of core antitrust rules]

B Foreign Case Law Germany: Bundesgerichtshof, Beschluss KZB 75/21, verkündet am 27. September 2022 [Award partially quashed for violating public policy due to the misapplication of core antitrust rules]

Pogled na parnice u Covid 19 medicinskim predmetima - inostrana praksa

This article provides a look at court cases with a medical background that emerged as a consequence of the COVID-19 pandemic. The majority of cases were started or finished as civil lawsuits. The cases are unique and they testify of disputes founded on different bases and forms of damages. They come from foreign case law, primarily from the US and European countries. The cases are different from one another and they usually concern access to healthcare, preventive measures, testing, emergency, and other conditions related to the work of specialist services, etc. The crisis that has arisen certainly cannot change the existing legal standards and other rules related to the responsibility of healthcare institutions and their employees. The crisis does not have that power, but it does bring certain specificities stemming from diverse situations. This is evidenced by the examples from the most recent case law. In order to ensure whether physicians and other medical staff have committed an error, the court must take into account the concrete working conditions of each of them in the context of the pandemic. Healthcare professionals are facing unusual risks related to the tasks they are being assigned. The existing legal regime of responsibility in healthcare provides some answers, but it is not certain that all the situations that have arisen from the healthcare crisis can be analyzed in the same way, especially due to the crisis situation and the dangers in which medical staff had to act.

Nužno suparničarstvo i proširenje pravnosnažnosti - o posledicama propusta suda da uoči deficit potpune nužne suparničarske zajednice

The paper deals with specific problem regarding required joinder of parties in litigation, namely legal consequences of rendering the judgment despite the failure to join a necessary party, but with court's failure to detect the issue, i.e. is the lacking necessary party bound by judgement? Dominant opinion, both in domestic and foreign representative legal theory and case law, decline res judicata effect, while some Serbian scholars accept it. Research based on constitutional and dogmatic scale shows that extension of res judicata effect could not be deemed as Serbian lex lata. The concept of required joinder of parties is based on protection of right to be heard of all necessary parties, so the contrary standpoint would diminish, or moreover infringe such basic human right. In addition, there is no legal ground for such extension of res judicata effect, bearing in mind provisions of Serbian Code of Civil Procedure. Lastly, if lacking necessary party would be bound by judgement, the very concept of required joinder of parties would be reduced ad absurdum.

Self-Citations and Citations to European Constitutional Courts by the Austrian Constitutional Court

The Austrian Constitutional Court (VfGH) cites – frequently itself, but also other (constitutional) courts. This article describes comprehensively the citation behavior of the VfGH based on both citations of its own case law and citations of foreign case law, meaning citations to the European Court of Human Rights (ECtHR), the European Court of Justice (ECJ) and other national constitutional courts of Member States of the European Union. This allows an innovative identification of so-called leading cases. With regard to self-citations, we identify key decisions that have shaped the jurisprudence of the VfGH. The identification of the 20 most frequently cited decisions of the ECtHR and the ECJ also provides an insight into the evolution of Austria’s legal integration in Europe using the example of the case law of the VfGH. The data shows that, apart from the ECtHR and the CJEU, only the German Federal Constitutional Court plays a – albeit small – role in the case law of the VfGH. The VfGH makes almost no reference to other European constitutional courts.

Coercive and controlling behaviour in the Domestic Violence Act

This article focuses on two definitions of domestic violence — ‘coercive behaviour’ and ‘controlling behaviour’ — which were formally introduced into South African law by the Domestic Violence Amendment Act 14 of 2021. It tracks the legislative process, including an overview of the different iterations of the definitions as they appeared in the preceding Bills. This is followed by an analysis of the definitions’ grammatical, conceptual and legal meanings (including considering applicable foreign case law), after which various indicators are formulated. The article then examines whether the definitions are fit for purpose by analysing whether they are constitutional. This investigation reveals that the definitions suffer from numerous deficiencies: they are vague, overbroad and ambiguous, rendering them potentially unconstitutional. However, despite these deficiencies, the importance of the definitions — informed by the legislature’s intentions and the prevailing societal context, amongst other things — is likely to deter any potential constitutional challenges disputing their validity. The article concludes by proposing alternative definitional formulations that, if implemented, may circumvent any potential constitutional challenges.

Wykładnia komparatystyczna czy niekomparatystyczne odwołanie do prawa obcego? Studium przypadku Trybunału Konstytucyjnego

Comparative Interpretation or Non-comparative Reference to Foreign Law? (A case Study of the Polish Constitutional Tribunal) The aim of the article is a reconstruction of the Constitutional Tribunal’s understanding of references to foreign law and jurisprudence. The research sample consists of judgments concerning: (i) the Lisbon Treaty; (ii) shooting down a civil aircraft; (iii) control of the objectives of a political party; (iv) data retention. Other judgements are referred supplementary. The article focuses on the internal point of view of the Constitutional Tribunal. It analyses how the Tribunal describes and understands the references to foreign law and foreign case law. It also discusses how the Tribunal uses that references. The main argument is that the Tribunal does not perceive its practice (i.e. references to foreign law) as comparative constitutionalism or comparative thinking. Consequentially, maybe it is not justified for scholars to criticize this practice as comparatively flawed. The article ends with a call to view the Tribunal’s references differently since the references to foreign law are an element of the non-linguistic context of the interpretation of constitutional provisions. It is also closer to an argument from authority than a comparative one.

네덜란드 우르헨다 판결, 아일랜드 FIE 판결, 독일 기후보호법 위헌판결, 그리고 한국의 기후변화

This research examined how the core of the 2019 Dutch Urgenda ruling (the state is constitutionally obligated to enact concrete and effective measures to prevent climate change, and the court can order its legislation) was borrowed by litigants in the Korean Youth Climate Crisis Constitutional Complaint (2020HonMa89), both directly and indirectly, via a 2020 Irish and 2021 German ruling. To do so, this paper first examined the ECtHR case law that provided the precondition for the Urgenda ruling before examining how the Irish and German judiciary subsequently treated the same issue. It then looked into the Korean constitutional complaint to see what arguments were employed and how foreign case law was used. As generalizable facts, it concludes that Korean litigants employed foreign case law to 1) stress the incontestability of certain facts (fact-related), 2) as evidence of a global consensus on a legal principle (legal principle-related), 3) to emphasize the effects a ruling could have on Korea’s national judicial prestige (prestige-related), and 4) encourage the judiciary to be more active on the issue (judicial restraint-related).

Notes: Multi-tiered dispute resolution clauses — Peremptory steps or too vague to matter?

Multi-tiered dispute resolution clauses in agreements in South Africa are prevalent. In many instances these clauses provide for a sequence of dispute resolution processes, often commencing with negotiation, followed by mediation, and then, finally, arbitration. Arbitrators and parties to these clauses need to consider whether the preconditions to arbitration are sufficiently certain to be enforceable and whether they have been fulfilled. The issue has received little attention in South Africa but there is a considerable body of foreign case law on the topic. According to foreign precedent, it must be determined whether the interim steps preceding arbitration are conditions precedent to arbitration, and, if so, whether they are enforceable. This entails, in part, assessing whether the clause in the agreement is of sufficient certainty for a court to ascertain whether it has been complied with. This note presents an exposition of the foreign case law and demonstrates how the position in foreign jurisdictions is consistent with the law in South Africa. It also aims to set out the minimum requirements for an interim negotiation or mediation clause to be enforceable as a precondition to arbitration.

Partial Price-Fixing and Semi-Collusion

Many cartels do not directly fix the price of products. Instead, the participants may agree on a starting price for negotiations or the price of a component of the overall price. Antitrust investigations reveal that cartel agreements are also often very imperfectly implemented. Antitrust law in the United States and the European Union has typically taken a robust approach to these practices even where economic analysis might be unable to show that such practices always or almost always harm consumer welfare. The decision of the New Zealand Supreme Court in Lodge Real Estate Ltd. v. Commerce Commission offers a New Zealand perspective on the concept of a price-fixing agreement and imperfect collusion. The Court, this article argues, reached the correct decision in Lodge. The decision, however, evidences a pragmatic judgment, rather than the confident deployment of economic learning or foreign case law within the statutory framework of the Commerce Act 1986. The language of sections 30 and 30A of the Act was borrowed from an Australian statute, which in turn had attempted to capture the state of United States price-fixing law in the 1970s. A more formalistic and pre-Chicago approach to antitrust is evident in the language, much of which was inspired by United States v. Socony-Vacuum Oil Co. The case also highlights some of the distinctive features of the competition law in New Zealand. The reluctance to develop to guide in the application of the general provisions of the Commerce Act and requiring a demonstration of an effect on price on the facts may mark a departure from the body of pricing case law in the United States and the European Union and risks undermining the per se prohibition of cartel conduct in the Commerce Act. Without the same depth and breadth of cartel case law, the adoption of a more flexible approach to anticompetitive agreements evident in some decisions in the United States and the European Union could have different effects in a smaller jurisdiction.

An Invitation to Mexican Courts to Engage with Transnational Sources of Law

In 2009, Mexican Courts started to engage in a transnational conversation between foreign courts. After Mexico was sentenced by the Inter- American Court of Human Rights (IACHR) in the case of Radilla Pacheco, the Mexican Supreme Court determined, among other things, that all national judges must examine the human rights interpretations issued by the Federal Judiciary and the IACHR, choosing the most favorable and effective interpretation to protect human rights, applying the pro homine principle. Nonetheless, nothing has been said about using case law from foreign courts as persuasive authority to find this “most favorable and effective interpretation of human rights” in Mexico. This article analyses whether Mexican courts should take into account the interpretations of foreign courts as persuasive authority when determining standards and scope of human rights, besides IACHR case law. I evaluate different theories that support the use and citation of foreign precedents, as well as arguments that raise concerns about citing foreign courts to interpret domestic legal frameworks. I conclude that, in order to make use of the most effective principles and standards of human rights, as the pro persona principle suggest, Mexican Courts should consider foreign case law.

Asymmetric cross-citations in private law: An empirical study of 28 supreme courts in the EU

Recent years have seen a growing volume of research on citations between courts from different countries. This article fills a gap in the current literature by presenting and analysing cross-citations between the highest domestic courts responsible for matters of private law in the EU from 2000 to 2018. It addresses two main questions: first, to what extent do judges cite foreign case law in their decisions? Second, what may explain the varying levels of engagement of supreme courts with foreign case law? Our findings offer a mixed result as to the nature and frequency of such cross-citations. Overall, we identify 2984 cross-citations; yet, only in few instances do we find a reciprocal relationship between the supreme courts of two countries, while more generally an asymmetric picture emerges. The article also discusses whether problems with the ease of access to court decisions may partly be responsible for limitations in the use of cross-citations.

A Global Community of Courts? Modelling the Use of Persuasive Authority as a Complex Network

There is a growing discussion in the legal literature of an emerging global community of courts composed of a network of increasing judicial dialogue across national borders. We investigate the use of foreign persuasive authority in common law countries by analyzing the network of citations to case law in a corpus of over 1.5 million judgments given by the senior courts of twenty-six common law countries. Our corpus of judgments is derived from data available in the vLex Justis database. In this paper we aim to quantify the flow of jurisprudence across the countries in our corpus and to explore the factors that may influence a judge’s selection of foreign jurisprudence. Utilization of foreign case law varies across the countries in our data, with the courts of some countries presenting higher engagement with foreign jurisprudence than others. Our analysis shows that there has been an upward trend in the use of foreign case law over time, with a marked increase in citations across national borders from the 1990s onward, potentially indicating that increased digital access to foreign judgments has served to facilitate and promote comparative analysis. Not only has the use of foreign case law generally increased over time, the factors that may influence the selection of case law have also evolved, with judges gradually casting their research beyond the most influential and well-known foreign authorities. Notwithstanding that judgments emanating from the United Kingdom (chiefly from the courts of England and Wales) constitute the most frequently consulted body of jurisprudence, we find evidence that domestic courts favor citing the case law of countries that are geographically proximal.

Recent engagement with international human rights norms by the courts of Singapore, Malaysia, and Philippines

Abstract This article makes two claims about international human rights norms in three English-speaking courts in Southeast Asia. First, the courts are engaging with the norms, contrary to the prevailing view that the four-walls and dualist doctrines maintain a stranglehold on the region. Singapore courts relied on foreign case law applying the European Convention on Human Rights to rationalize a liberal interpretation of arbitration agreements; Malaysia’s Court of Appeal based its decision on the Association of Southeast Asian Nations Human Rights Declaration, despite lack of legislative incorporation; and the Philippine Supreme Court applied the Convention on the Protection of Persons against Enforced Disappearances (CPPED) as evidence of customary international law, notwithstanding that the government had repeatedly refused to ratify CPPED. Second, their engagement is characterized by inconsistency and arbitrariness as it is governed more by exigency than by human rights philosophy. The Philippine court invoked universality to give direct but selective effect to the norms. In the name of pluralism, Malaysian courts gave direct effect to the norms, but the effect has been transitory. In Singapore, the norms have teleological effect in private law cases involving commercial and investment interests, but not in public law cases involving individual and political rights. The lack of principled practice and the ensuing uncertainty undermine the ethos of human rights and raise the question of whether more practice makes right.

Asymmetric Cross-Citations in Private Law: An Empirical Study of 28 Supreme Courts in the EU

Recent years have seen a growing volume of research on citations between courts from different countries. This article fills a gap in the current literature by presenting and analysing cross-citations between the highest domestic courts responsible for matters of private law in the EU from 2000 to 2018. It addresses two main questions: first, to what extent do judges cite foreign case law in their decisions? Second, what may explain the varying levels of engagement of supreme courts with foreign case law? Our findings offer a mixed result as to the nature and frequency of such cross-citations. Overall, we identify 2,984 cross-citations; yet, only in few instances do we find a reciprocal relationship between the supreme courts of two countries, while more generally an asymmetric picture emerges. The article also discusses whether problems with the ease of access to court decisions may partly be responsible for limitations in the use of cross-citations.

The legal status of human biological material used for research

Whether human biological material (‘HBM’) in the research context is susceptible of ownership is contested, yet under-investigated. This situation leads to legal uncertainty for local scientists and their international collaborators. This article presents a comprehensive analysis of the topic — investigating both common law and statutory law — and concludes that HBM in the research context is indeed susceptible of ownership. First, since the common law is dynamic, it should recognise the reality that HBM has become useful in the research context and should therefore treat HBM in this context as susceptible of being owned. This aligns with the general trend in comparative foreign case law. Secondly, since relevant statutes consistently use the legal-technical term ‘donation’ to denote a situation where HBM is provided by a research participant to a research institution for the purposes of research, the transfer of ownership in the donated HBM from the research participant to the research institution is a statutory requirement. This necessarily implies that HBM in the research context is indeed susceptible of ownership and, moreover, that HBM in the research context is owned by research institutions and not research participants.

THE PERSPECTIVES OF EUROPEAN SOCIETY AND THE EUROPEAN COOPERATIVE AS A FORM OF ENTREPRENEURSHIP IN THE CONTEXT OF THE IMPACT OF EUROPEAN ECONOMIC POLICY

The impact of European economic policy is felt in all areas of the existence of individual Member States. Its economic area is not an exception. In the context of entrepreneurship, the impact of European economic policy has also been reflected in the introduction of new legal forms of entrepreneurship. The primary concern is a European society and a European cooperative whose legislation has become part of the national legal order under European Union regulations. This article focuses on examining these legal forms of entrepreneurship. The main objective of the article is to comprehensively analyse the legislative aspects of European society and the European cooperative and to examine their legal regulation and status in the legal system of the Slovak Republic, especially using critical analysis and other scientific methods, we are looking for answers to selected application problems from practice. As part of the investigation we also use scientific and doctrinal interpretation, Slovak and foreign professional literature and case law Comprehensive legal examination of European society and European cooperative in the Slovak Republic is the main objective of this contribution, which belongs to the field of commercial law with certain overlaps into economics and entrepreneurship.