Interlocutory Orders Research Articles

Nippon Shinyaku Co. v. Sarepta Therapeutics, Inc.

Nippon Shinyaku Co. v. Sarepta Therapeutics, Inc.

Concurso de acreedores con citación a demandado residente en país extranjero

En la tramitación de causas por concurso de acreedores, cuando el demandado tiene su domicilio en otro país, previo a la calificación y mediante un auto interlocutorio los jueces de lo civil en el Ecuador declararan su inhibición por competencia territorial. Esto en razón de que el Código Orgánico General de Procesos (2015) establece en su artículo 418 que el juez del domicilio del deudor será el competente para conocer estas causas. No obstante, lo expuesto perjudica al actor del proceso concursal, considerando que previo a iniciar el juicio existe una sentencia ejecutoriada que condena al demandado el pago de sus obligaciones. Bajo este criterio, en el presente artículo se examina el procedimiento concursal que al parecer restringe la adecuada administración de justicia y la tutela efectiva garantizada en la Constitución. El objetivo de esta investigación es plantear algunas reglas que puedan ser aplicadas, a fin de que la normativa expuesta no interrumpa el debido proceso ni la legítima defensa del presunto fallido. En el texto se propone con fundamento legal y doctrinario una reforma al Código Orgánico General de Procesos. El método utilizado es la revisión sistémica, bibliográfica y documental con el soporte y criterio de diferentes de autores.

Institute of constitutional complaint: foreign practice, domestic experience and prospects

The article deals with the problem of realization of the constitutional complaint in foreign countries and its peculiarities and further prospects in Ukraine. It is emphasised that the introduction of the constitutional complaint and the parallel implementation of the doctrine of amicable treatment of international law in the Constitutional Court will comprehensively promote the protection of citizens’ rights at national level and, as a result, can be an effective means of avoiding undue burden on the European Court of Human Rights. The most relevant directions for the constitutional complaint in Ukraine are identified: the intro-duction of a full constitutional complaint, but not a regulatory one which is in force today; inability to review the decision of the Court of Justice for a final judgement already enforced, etc. It is pointed out that the introduction of a normative model of constitutional complaint in Ukraine provoked a number of discussions regarding the full realization of the rights of the individual, but the situation in the state should be evaluated first and foremost. Various statistics on the constitutional complaint in Ukraine and in foreign countries are presented and analyzed. It is highlighted that given the complex political and economic situation in the coun-try and other factors, the implementation of the constitutional complaint institute should be moderate in nature and be gradual, elaborated and legally predicted by specialists. It is emphasised that the introduction of a complete model of constitutional complaint is an important direction of development of constitutional modernization in Ukraine which should move in parallel with political, social, economic reforms. With a view to the effective and transparent implementation of the constitutional complaint institute in Ukraine, the need for clarification of the provision of Article 78 on the grounds for issuing the interlocutory order, since the question remains as to what exactly should be referred to as the term “irre-versible consequences”; attention to the issue of meaningful filling of the concept of “public interest” (Part 2 of Article 77 of the Law of Ukraine “On the Constitutional Court of Ukraine”).

The Power of the Courts to Issue Commission under Civil Procedure Code, 1908 - An Exposition

The rationale behind issuing commissions originates from the jurisprudence that there should not be any abuse of process during the pendency of proceedings. Commission is one of the forms of interim orders inter alia, temporary injunctions, security for costs, payment in courts and interlocutory orders et cetera; issued by the court to assist the parties vis-a-vis suit in the prosecution and protection of the subject matter of the suit. Howbeit, commissions are not issued to determine the substantive rights and liabilities of the parties concerning the subject matter of the suit or proceeding but is an interim order i.e., incidental proceedings to protect the rights of the parties during the pendency of the suit. The appraisal is structured as follows. The first part will construct an analysis of the provisions of the Civil Procedure Code, 1908 along with illustrations and cases. The second part provides an examination of the scope of the appurtenant statutory provisions. Lastly, the third part will be the conclusion along with the researcher's comments.

The Cat is Out of the Bag: Immediate Appeal of Interlocutory Orders to Disclose Work-Product Material Under Ohio Law

The Cat is Out of the Bag: Immediate Appeal of Interlocutory Orders to Disclose Work-Product Material Under Ohio Law

Selective Distribution Networks for the Marketing of Luxury Branded Products Versus the Amazon Marketplace: The Sisley v Amazon Case before the Court of Milan

By an interlocutory order the District Court of Milan found that putting on sale on an electronic marketplace branded luxury products according to selling modalities that differ from the qualitative standards that the supplier has imposed on the resellers admitted to the selective distribution network created for the marketing of those products amounts to a trademark infringement. The Court of Milan confirms that the existence of a lawful competition-compliant selective distribution system constitutes a legitimate reason for not applying the principle of exhaustion. And more importantly, for the first time in Italy, the Court of Milan expressly found that the online sale of branded luxury products in defiance of the selling conditions imposed by the head of a selective distribution network infringes the trademark rights of the latter on such products. This paper reviews the decision of the Court of Milan and gives an insight into its practical implications.

Whether an Order Passed Under Section 23 of the Protection of Women From Domestic Violence Act, 2005 Is an ‘Interlocutory Order’ or ‘Final Order’?

Section 23 of the DVA, like Section 24 of the HMA is not an interlocutory order and is in fact in the nature of a ‘final order’, thus, as an appeal to the High Court under Section 19 (1) of the Family Courts Act, 1984 is maintainable against an order passed under Section 24 of the HMA, similarly, a revision petition to the Court of Session or the High Court under Section 397 read with Section 399/ Section 401 of the Criminal Procedure Code, 1973 is maintainable against an order passed under Section 23 of the DVA by the Magistrate.

Interim Judicial Protection Against Publication of Confidential Information in Commission Antitrust Decisions

The publication, in the name of transparency, of Commission decisions finding infringements of EU competition law is a powerful tool for enhancing the private enforcement of Articles 101 and 102 of the Treaty on the Functioning of the European Union (‘TFEU’). Before publishing those decisions, the Commission must nonetheless be careful to afford ‘very special protection’ to the legitimate interest of the undertakings concerned in the protection of their business secrets and other confidential information. When preparing the non-confidential version of the decision to be published, the Commission involves those undertakings, which have the right to object and, where they consider it appropriate, to refer the matter to the Hearing Officer, whose decisions may in turn be challenged before the EU Courts. In such cases, interim relief is essential to safeguard the undertakings’ right to the protection of confidential information, as well as their right to effective judicial protection. The recent case law of both EU Courts on interim protection in this context is marked by a high degree of technicality and struggles to adapt the ordinary interpretation of the conditions required for the granting of interim measures to the specificities of this kind of case. This article examines several rather complex interlocutory orders in an attempt to extract the logic behind them.

Interlocutory Orders and Power of Revision: The Code of Criminal Procedure, 1973

In the matter of: Madhu Limaye V/s State of Maharashtra, (1977) 4 SCC 551, it was observed that, the legislature has sought to check delay in final disposal of proceedings in criminal cases by way of a bar to revisional jurisdiction against an interlocutory order under Sub-section (2) of Section 397 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Cr.P.C). At the same time, inherent power of the High Court under Section 482 of the Cr.P.C. is not limited or affected by any other provision of the Cr.P.C.; however, it could not mean that limitation on exercise of revisional power is to be set at naught. Inherent power can be used for securing ends of justice or to check abuse of the process of the court. Power under Section 482 of the Cr.P.C. has to be exercised very sparingly against a proceeding initiated illegally or vexatiously or without jurisdiction.

Rushing to Judgment: The Evolution of Sports Disciplinary and Arbitral Bodies in Ireland

This article provides a review of judicial scrutiny of decisions of the leading sports authorities in Ireland. It focuses primarily on the Gaelic Athletic Association (‘GAA’), Ireland’s leading sports organisation, and the manner in which it has dealt with the increasing incidents of so-called ‘ambush injunctions’, whereby individual participants seek, primarily through the use of interlocutory orders, to circumvent playing suspensions. The GAA’s experience, which is all the more remarkable given that it administers fundamentally amateur games, has been reflected across the Irish sporting spectrum with the Irish horse-racing authorities (the ‘Turf Club’), the Football Association of Ireland (‘FAI’) and the Irish Rugby Football Union (‘IRFU’) facing similar ‘rushes to judgment’.An interim assessment of the GAA’s recently enhanced disciplinary mechanism – the Disputes Resolution Authority – follows this introductory context. The DRA, of which the author is a panel member, is an arbitral-based disciplinary tribunal, independent of the GAA’s central authorities, and hears disputes referred to it on an appellate basis only. The establishment of the DRA is of interest for Irish sports administration as a whole. It is suggested that a body of similar operational remit might be used as the basis of a national sports disputes tribunal for Ireland. This analysis of the DRA and the concomitant promotion of a soi-disant Irish Court of Arbitration for Sport, forms the central part of this brief review, throughout which frequent use is made of the persuasive authority of English law.

Dead Bodies in Nigerian Jurisprudence

AbstractRecent events and a few judicial decisions in Nigeria show the need for a serious analytical engagement with the law relating to dead bodies. Topical issues from these cases focus on jurisdiction, the right to control the disposition of remains, and remedies available for the infringement of a burial right. While the meaning and content of sepulchral rights remain the same in Nigeria as in many industrialized nations, its prioritization is markedly different. In contrast to the highly individualized nature of burial rights in many Western legal systems, the control of sepulchral right in Nigeria is familial in character. In some circumstances, however, recourse may be had to statutory provisions that import English priority rules. While a range of remedies is available for an interference with a burial right, injunctions and declarations are the most sought after by Nigerian litigants. An expedited hearing is preferable to an interlocutory order of injunction.

The Jurisdictional Limits of Disclosure Orders in Transnational Fraud Litigation

A modern approach to private international law must deal adequately with three overall concerns. First, it must provide functional responses to the modern international context of trade and commerce in which cross-border problems arise. Second, it must provide effective and fair remedies in civil disputes when those disputes spill over national borders. Third, it must resolve the otherwise irreconcilable conflicts between national legal systems—not as an end in itself or solely as a means of finding comity among nations, but in order to do substantial justice between the private litigants involved. As Dicey had it in the choice of law context, this “does not arise from the desire of the sovereign of England or any other sovereign to show courtesy to other states. It flows from the impossibility of otherwise determining whole classes of cases without gross inconvenience and injustice to litigants, whether natives or foreigners.” It is the burden of this article to examine the way in which the English courts have sought to work out these three general functions in the context of developing rules that govern the ambit of interlocutory orders to disclose and trace the proceeds of fraud internationally. Having identified the problems of abuse presented by the new opportunities of the international banking system, the courts have been quick to innovate in developing new remedies. But just as quickly they have run up against the boundaries of such remedies, both in granting orders themselves and in reacting to foreign orders.

The States Can Wait: The Immediate Appealability of Orders Denying Eleventh Amendment Immunity

The Eleventh Amendment of the United States Constitution prohibits federal courts from taking jurisdiction over suits brought against a state by citizens of other states or of foreign nations.' According to the Supreme Court, the amendment embodies a broad constitutional principle of state sovereign immunity.2 The correct characterization of this immunity, however, remains unclear. Is it a right not to stand trial or is it merely a defense to liability? This question becomes important when a state tries to appeal immediately from a denial of a motion to dismiss on Eleventh Amendment immunity grounds. A state will seek immediate review of such an interlocutory order because a reversal would dispose of the case and save the cost of lengthy proceedings in the trial court. Unfortunately for states, federal law generally prohibits immediate appellate review of interlocutory orders.3 Because appeals from interlocutory orders can create piecemeal litigation, the Supreme Court has consistently held that the final judgment rule prohibits immediate review of an interlocutory order unless it is a order. Under the collateral order exception to the final judgment rule, a state may appeal immediately from a denial of a motion to dismiss on Eleventh Amendment immunity grounds only if the immunity gives the state a right not to stand trial. If it gives the state merely a defense to liability, the state must await final judgment before appealing.

Consolidation: More News from the Front-Line The Second Shui On Case

The Hong Kong Supreme Court has recently made a second order for consolidation of arbitrations taking place in Hong Kong under Section 6B of the Hong Kong Arbitration Ordinance 1982, again on the application of Shui On Construction Company Limited, the main contractor in the construction of twin thirty-four storey buildings on the Wanchai Reclamation known as the Great Eagle Centre and the Harbour Centre. This second case illustrates the court's discretion to order consolidation ‘on such terms as it thinks just’ under the Arbitration Ordinance and the procedural distinction between full or formal ‘consolidation’ of different arbitrations with the same claimant and arbitrations ‘ordered to be heard together’ with different claimants. The first order was made by Rhind J. in Re Shui On Construction Co Ltd and Schindler Lifts (H.K.) Ltd (1986) HKLR 1177 where the court ordered the main arbitration between Shui On and the Employer to be ‘heard together’ with the arbitration between Schindler Lifts and Shui On under a sub-contract1. In this first case, there could be no order for full or formal ‘consolidation’ because Shui On was the claimant in the first arbitration with the Employer and the respondent in the second arbitration with the nominated sub-contractor, Schindler Lifts; and therefore there could not be a single claimant. The practical advantage of an order for formal consolidation under the Arbitration Ordinance is that the arbitrator can then make interlocutory orders affecting all parties to the consolidated arbitrations; for example ordering mutual discovery between all parties and not merely between the parties to each arbitration. It would also follow that the arbitrator could make one award affecting all parties, and not separate awards in each arbitration. An order that two arbitrations be ‘heard together’ means only that the arbitrations should be heard by the …

Interlocutory Review in California. Practical Justice Unguided by Standards

The thrust of the Restatement which is the centerpiece of this issue of Law and Contemporary Problems-synthesizing the complex body of case law into an orderly scheme of appeal, certified appeal, and restricted interlocutory appealsurely moves in the right direction. Yet the experience of state appellate courts suggests consideration of a more open-ended system of interlocutory review, one would give the United States courts of appeal broad discretionary power to issue writs or orders to supervise trial court action. Flexible schemes of civil appellate review have been successfully implemented in some jurisdictions; their workings are discussed elsewhere.1 In California, a nominally restricted and formal procedure has in fact evolved into a flexible scheme of interlocutory review: a formerly rigorous final judgment requirement has been eroded by a few legislative exceptions and, more significantly, by judicial decisions gradually broadening the prerogative writs to permit discretionary review of interlocutory orders. Resort to writ practice for interlocutory review is particularly inviting to the appellate courts of California because nonpriority civil appeals are heavily backlogged-time lapse between completion of briefing and calendaring for hearing is two years or more in some districts. Appellate motivation to tolerate the growth of writ practice may be influenced also by the circumstance that, although California Constitution article 6, section 14 requires appellate decisions that determine causes shall be in writing with reasons stated, a writ proceeding does not become a cause unless an alternative writ is issued placing the matter on calendar for argument. Thus, the appellate courts economize their labor by writing no opinions where writs are summarily denied. This emerging system of interlocutory review would be more serviceable if it were articulated in statutes or rules. Yet in its half-concealed state it shows

Discretionary Appeals of District Court Interlocutory Orders: A Guided Tour Through Section 1292(b) of the Judicial Code

Discretionary Appeals of District Court Interlocutory Orders: A Guided Tour Through Section 1292(b) of the Judicial Code

Interlocutory Orders "Refusing" Injunctions: Federal Rules. Appealability of Interlocutory Orders. Courts and Appeals. Injunctions

Interlocutory Orders "Refusing" Injunctions: Federal Rules. Appealability of Interlocutory Orders. Courts and Appeals. Injunctions

Federal Courts: The Scope of the Review of Interlocutory Orders and Decrees under Section 129, as Amended, of the Federal Judicial Code

Federal Courts: The Scope of the Review of Interlocutory Orders and Decrees under Section 129, as Amended, of the Federal Judicial Code

Appealability of Interlocutory Orders of Independent Federal Administrative Agencies

Appealability of Interlocutory Orders of Independent Federal Administrative Agencies

Federal Practice: Appeal and Error: Dismissal of Counterclaim Because of Improper Venue Appealable as Interlocutory Order Denying Injunction

Federal Practice: Appeal and Error: Dismissal of Counterclaim Because of Improper Venue Appealable as Interlocutory Order Denying Injunction