Jurisdiction Of Court Research Articles

A critical analysis of Massmart Holdings and Others v South African Commercial Catering and Allied Workers Union [2022] ZALCJHB 119

South African law under the Labour Relations Act 66 of 1995 (LRA), as amended, confers on the Labour Court the power to adjudicate on issues relating to strikes and to grant an interdict and/or order the payment of just and equitable compensation for any loss attributable to the strike or lockout. At least 48 hours before the strike, workers or their trade unions must give written notice of their intention to strike to the employer, the applicable negotiating council, and the Commission for Conciliation, Mediation, and Arbitration. If a strike follows the law, workers who take part in it are shielded from being fired for no other reason than that they are striking. Employees on strike and their trade unions are shielded from lawsuits for any losses or harm sustained while on the protected strike. During an unprotected strike, workers lose the legal protections afforded by labour laws, leaving them open to legal action and possible termination. In the case under review - Massmart Holdings and Others v South African Commercial Catering and Allied Workers Union [2022] ZALCJHB 119 - the trade union, from whom the employer sought compensation for damages caused during a protected strike, objected to the Labour Court's jurisdiction as derived from the LRA. This article provides a critical review of the Labour Court's jurisdiction, particularly in the light of section 68 of the LRA, to order compensation. The analysis revisits previous judgments to test the correctness of the judgment given in the Massmart case.

KELEMBAGAAN DAN KEWENANGAN PENGADILAN NIAGA TENTANG UPAYA HUKUM KEBERATAN TERHADAP PUTUSAN KOMISI PENGAWAS PERSAINGAN USAHA

Article 24A (5) of the 1945 Constitution regulates the composition, position, membership, and procedural law of the Supreme Court and subordinate judicial bodies. Initially limited to bankruptcy, postponement of debt payment obligations (PKPU), and commercial matters by Law Number 37 of 2004, the jurisdiction of the Commercial Court has expanded through other laws. This expansion raises two key issues: (1) The need for legal remedies for objections to decisions of the Competition Supervisory Commission (KPPU), and (2) The competence of the Commercial Court to address these objections. This research uses a normative juridical method, suggesting that legal remedies for objections to KPPU decisions should be regulated in a separate law, addressing decisions from institutions beyond the judiciary’s jurisdiction. The procedural aspects for contesting KPPU decisions, outlined in Article 45 of the Omnibus Law Number 6 of 2023, should first be determined within the competence of the Commercial Court as regulated by law. The current institutional arrangements and authority of the Commercial Court, as outlined in the Bankruptcy and PKPU Laws and laws on Intellectual Property Rights, should be revised through a dedicated Law on Commercial Courts. This law should define the court's structure, powers, procedural rules, and set time limits and sanctions for case resolution at both the Commercial Court and the Supreme Court.

Prawo małżeńskie osobowe Drugiej Rzeczypospolitej na ziemiach wschodnich dawnego zaboru rosyjskiego

The article describes the problems facing the marriage law in the eastern parts of the Second Polish Republic. These issues are mainly due to the lack of codification of matrimonial law throughout the territory of the Republic of Poland and the fact that exclusively civil jurisdiction in matrimonial matters was not implemented, as it was envisaged in Lutostański’s proposal. The decisions of ecclesiastical courts led to the creation of substantially invalid marriages and the spreading of legal bigamy. Failure to observe state regulations concerning the jurisdiction of ecclesiastical courts in dissolution or nullity cases, as well as mutual non-recognition of judgments of the ecclesiastical courts contributed to the creation of areas called “divorce meccas”. These designations referred to the Eastern Orthodox and Calvinist Church existing in the eastern territories of the Second Polish Republic. Taking into account the above, the article is intended to compare factors destabilising marriage law in the areas in question. To analyze this issue, primarily the historical and legal method was used.

Novi međunarodni privredni sudovi

In this paper, the author provides an overview of the main characteristics of international commercial courts, their composition and jurisdiction, as well as private international law instruments that ensure the recognition and enforcement of their decisions abroad. International commercial courts are national courts of international jurisdiction. They are established by individual states that aspire to be or become significant global centres for the resolution of commercial disputes. They are characterized by a certain degree of internationalization, reflected in their ability to conduct proceedings in the English language and in the origin of judges, who are, in some instances, foreign nationals. Some international commercial courts adjudicate cases according to common law rules, even though they are based in countries with legal systems based on continental law or Sharia law. The procedural rules before most of these courts incorporate elements of arbitral procedural rules and alternative dispute resolution methods. They generally have jurisdiction in commercial disputes with an international element, and they recognize a written choice-of-court agreement of the parties as the basis for international jurisdiction. In this regard, there is no requirement for any connection with the state where the court is based for valid submission to jurisdiction.

Harmonizing Ouster Clauses and Pre-action Protocols in Nigerian Construction Disputes

This paper discusses how ouster clauses and pre-action protocols intersect when it comes to resolving construction disputes within the Nigerian context. Concerning dispelling ambiguity and providing sureness, ouster clauses point out ways of dispute resolution mechanisms. On the other hand, early resolution and cost saving can be encouraged through dialogue or cooperation before formal litigation thereby being said as the role of pre-action protocols in promoting such response before justice is sought. It is important to understand how these factors interrelate so that we can manage construction disputes effectively. While ouster clauses might influence when pre-action protocols are applied, they may also determine how parties understand and observe such provisions. Nigeria’s legal system as far as construction disputes are concerned, should be managed to maintain a harmonious balance between the two mechanisms. The interdependencies of the entities involved in this process are explored here and the aim is to provide information that could be useful for those practicing law or those responsible for making decisions in other areas The effectiveness of ouster clauses and pre-action protocols in construction disputes is assessed based on factors like resolution speed with a weighted mean of 2.53, legal enforcement (2.49), compliance rate (2.35), cost reduction (2.21). Ouster clauses limit the jurisdiction of courts or arbitrators by 34%, leading to prolonged litigation or arbitration (23%). Pre-action protocols impose procedural requirements (18%), causing delays and increased costs (16%). To improve the effectiveness of ouster clauses and pre-action protocols in construction disputes, it is crucial to enhance clarity, promote alternative dispute resolution, facilitate early engagement, strengthen enforcement mechanisms, and engage stakeholders. Keywords: Construction disputes, Litigation, Ouster clauses, Pre-action protocols, Resolution.

The African Court's Jurisdiction over the "International" Eco-Crime of Trafficking in Hazardous Wastes: Challenges and Opportunities

This article gives an overview of the jurisdiction of the proposed African Court of Justice and Human Rights (African Court) over the transnational crime of trafficking in hazardous wastes as provided for in Article 28 L of the Malabo Protocol. It asserts that Article 28 L ought to be considered as emancipatory in view of the factors which motivated its inclusion in the Protocol; and that it is a significant innovation not only for the African Union but for the field of international criminal justice as a whole. The article concludes that the criminalisation of trafficking in hazardous waste through the Malabo Protocol is necessary as Article 28 L will help to fill the gap created by the ineffectiveness of the domestic implementation of the Bamako Convention, and the potential ineffectiveness of the Basel Ban Amendment, which entered into force in December 2019.

The ICC jurisdiction in Ukraine: challenges and opportunities in the fight against impunity

This article examines the legal relationship between the International Criminal Court (ICC) and Ukraine, a non-party to the Rome Statute, focusing on the scope of the Court's jurisdiction to consider Ukraine's referrals regarding serious crimes committed on its territory since 2014. Discussions regarding the extension of the ICC's jurisdiction over Ukraine commenced in 2014-2015 following Ukraine's two requests for recognition of the ICC's ad hoc jurisdiction. Following the full-scale invasion in 2022, the ICC consolidated these proceedings with the ongoing investigation of crimes committed in Ukraine since 2014. This article analyzes how the ICC's jurisdiction applies to Ukraine, the challenges and prospects for cooperation between the ICC and Ukraine in investigating crimes committed by Russian forces, and the broader implications for the international criminal justice system. The authors analyze arguments for and against Ukraine's ratification of the Rome Statute, concluding that the ICC's jurisdictional framework, particularly concerning the crime of aggression, requires refinement.

특허침해소송이 제기된 이후 소극적 권리범위확인심판 청구를 제한할 필요성에 관한 소고

Given the intent and practical utility of the patent right scope confirmation system, the necessity to maintain this system should be acknowledged. However, it is questionable whether the interests of confirming the scope in cases where infringement lawsuits have already been filed, leaving only the main judgment, or even after a final judgment has been rendered, should be acknowledged. In such cases, there may be opportunities for parties to exploit the patent scope confirmation trial to delay disputes. In practice and the Supreme Court, except for exceptional cases such as seeking confirmation of the scope concerning patents that have expired or are not being implemented by the parties, the interests of confirming the scope of patent in trials and lawsuit are recognized. However, considering the legal nature, effectiveness, and relationship with related infringement lawsuits under patent law, it should not be overlooked that in some cases, it may be more efficient to restrict this process. Excessive requests for patent scope confirmation trials can burden parties with excessive time or costs and result in unnecessary waste in the national litigation system. Rather than generally recognizing the interests of confirmation based on the necessity or independence of the system, it is necessary to assess the interests of confirmation from the perspective of whether it is an effective and appropriate means for resolving specific disputes. While acknowledging the intent and function of the patent scope confirmation system, it is necessary to limit requests for confirmation of the scope by assessing ‘the presence or absence of interests of confirmation’. For instance, when a related infringement lawsuit has already been filed and has progressed to the point of hearings, there is no need to recognize the interests of negative patent scope confirmation, which would impose dual litigation burdens and delay on the parties and waste the court's time and resources on ineffective disputes. Furthermore, when patent scope confirmation and related infringement lawsuits run concurrently, each procedure is independent and not binding, which can lead to conflicting conclusions and undermine confidence in the patent system and the judicial system. Moreover, with the 2016 amendment to the Civil Procedure Act, where appeals of nullification lawsuits and infringement lawsuits are under the jurisdiction of the Patent Court, and both procedures are simultaneously litigated, the situation has become less prone to inconsistency or undermining. Therefore, recognizing ‘the interests of patent scope confirmation’, even in cases like the one mentioned, should be limited, and a restrictive interpretation should be applied.

Ex ante litigation risk and firm restatement decisions: Evidence from district courts

This study examines whether ex ante securities litigation risk prompts firms to make more or less voluntary restatements. The litigation risk is captured by a new measure based on the dismissal rate of the district court where the firm is headquartered. We find that misreporting firms headquartered in lenient (high dismissal rate) court jurisdictions are more likely to make voluntary restatements. Using the U.S. Supreme Court’s Tellabs decision as an exogenous shock that reduces the leniency of some district courts, we find robust evidence that higher litigation risk decreases managers’ incentives to admit their misreporting. Our finding sheds new light on the litigation risk-voluntary disclosure paradox by pointing to a positive aspect of court leniency in motivating self-policing behavior such as restatement.

The Influence of the Constitutional Court Ruling No 90/PUU-XXI/2023 on the Authority and Marvel of the Constitutional Court as Guardian of the Constitution

The Constitutional Court was formed to maintain the integrity of the Constitution through a deeper interpretation based on the 1945 Constitution. This journal discusses the influence of CC Decision No. 90/PUU-XXI/2023 on the Authority and Dignity of the Constitutional Court as Guardian of the Constitution. The study combines a literature review methodology with a qualitative approach. The research results show that CC Decision No. 90/PUU-XXI/2023 is contrary to the Constitutional Court's authority based on the 1945 Constitution. The addition of new regulations that were previously unregulated or not is not outside the Constitutional Court's jurisdiction, but rather the legislative authority. Research examines the importance of maintaining judicial neutrality to prevent abuse of power. The Constitutional Court, as the Guardian of the Constitution, must pay attention to the rights of citizens and maintain the balance of power. With this controversial decision, in the context of the CC authority which should be limited to constitutional review and maintaining the neutral role of the judiciary in fighting abuse of power by the legislature and executive. Even though the Constitutional Court is the final decision maker on laws based on the 1945 Constitution, its authority is limited to reviewing laws and is not involved in the legislative realm.

Legitimacy of Subjects of the Right to Judicial Protection in the Law Enforcement Practice of Land and Property Disputes Resolution: Formulation of the Problem

The article is devoted to the study of the problems of the ownership of the plaintiff and the defendant as parties to a land-property dispute in the current law enforcement practice of courts of general jurisdiction. The author emphasizes that the primary task of the judicial branch of government and a specific court as its representative is to correctly determine the subject composition of the case, the subject of which is the resolution of a land and property dispute. Achieving the specified task has two main consequences: obtaining legal protection of the violated, unrecognized or disputed right by the proper “offended” person and placing responsibility for the committed encroachment on property rights on the actual violator. The article analyzes the procedural institution of replacement of an improper defendant as a mechanism designed to ensure the implementation of the principle of ownership of the parties to the dispute in the civil process. In particular, the author drew attention to the fact that in the judicial practice of courts of all instances, the terms “proper plaintiff” and “improper plaintiff” are used, the definition of which is not contained in the current civil procedural legislation. In addition, the article analyzes the judicial law enforcement practice formed in the part of replacing an improper party in cases for the resolution of land and property disputes and formulates relevant conclusions regarding the ambiguity of the positions of courts of general and administrative jurisdiction in this matter. The author conducted a comparative analysis of the legal regulation of the institution of replacement of the proper party in a dispute under civil and administrative procedural legislation. Based on the results of the research, the author outlined the scientific and practical aspects of the investigated issues in this field of civil procedural law. In particular, the author comes to the conclusion about the inconsistency of the legislator’s vector regarding the development of an effective procedural mechanism for the protection of the rights of subjects of land legal relations, which in turn creates prerequisites for possible abuse of the court’s procedural powers.

Современные тенденции определения подведомственности споров

Since 2018, the term jurisdiction cannot be applied to civil proceedings as the legislator found it outdated after the single Supreme Court had been introduced. In fact, this term has never been mentioned in the Constitution of the Russian Federation. However, the phenomenon designated by the term cannot be removed from the doctrine and judicial practice for the following reasons. First, the rules of jurisdiction distribute cases between judicial and non-judicial bodies. Second, they make it possible to identify cases of a non-legal nature that cannot claim state protection. The law of 2018 had some positive consequences. Now, the refusal procedure is less complicated. Non-judicial cases can be easily transferred under proper jurisdiction where they will be considered according to a different type of legal proceedings. As for the negative consequences, it seems that the legislator interpreted jurisdiction only as the distribution of cases between different courts and substituted the term subject matter jurisdiction with court jurisdiction. The author criticizes this narrow approach and highlights two urgent issues: 1) not every case has to go to court; 2) digital technologies are important in legal proceedings. These trends can optimize judicial competence, as well as create new rules of court jurisdiction without violating the constitutional right to judicial protection. The article describes the rules of jurisdiction and their improvement, as well as determines the place of jurisdiction among other procedural institutions and introduces some ways to reform the subordination of civil cases to courts of civil jurisdiction. Jurisdiction has an intersectoral nature and is a way of distributing cases between judicial and non-judicial bodies. A combination of standard scientific methods with the formal-legal analysis made it possible to identify the following development directions. 1) Non-judicial cases need proper criteria. 2) New information technologies should enter the judicial system to update the court procedure, e.g., minor cases could be reviewed in court exclusively as an electronic procedure.

An investigation of women's judgment in jurisprudence and Afghanistan law

This article examines the difference between women in Imamiya jurisprudence, Sunni jurisprudence, and Afghanistan law, and in this regard, it explores the views of Imamiya jurisprudence and Sunni jurisprudence with a comparative perspective. Meanwhile, the laws of Afghanistan have also been considered. The present research has been carried out with a descriptive analytical method and it has been concluded that among the Sunni jurists and Imamiya jurists, the dominant view is that women are not qualified to be a judge. About this disqualification, jurists have referred us to verses of Quran and Ahadith and they believe that the main reason for women's disqualification is the claim of consensus. Despite this prevailing view, some Imamiya jurists doubt the existence of such a consensus and do not consider women's limited qualification in cases that can be proven by their testimony. Among the religions, the Hanafis believe that women can take the position of judge, except in cases of retribution. The absolute authority of women to hold a judgeship among the Imamis and the Sunnis also has few supporters. According to this point of view, the laws of Afghanistan have not deprived women of this right, and women can take this responsibility just like men, therefore the Afghan Courts Jurisdiction Law has not mentioned being a man as one of the conditions of being a judge in this country.

The statutory assertion of exclusive jurisdiction

Statutes that create or codify causes of action sometimes contain jurisdiction provisions. The wording of these provisions can differ widely. Some of them purport to give exclusive jurisdiction to a specific court. In the private international law context, this raises the question of whether such a provision precludes the courts of any other jurisdiction from hearing a claim under the statute. This article analyses how these provisions have been interpreted. It focuses on Canadian law but draws on American, Australian and New Zealand jurisprudence. The article contends that the Canadian jurisprudence is uneven and insufficiently rigorous. Several of the decisions cannot be reconciled with each other, such that some must be regarded as incorrect. Several of the decisions fail to identify the important questions that are posed by alleged assertions of exclusive jurisdiction and also fail to answer them. Moving forward, courts should treat the claim that such a provision deprives a court of jurisdiction with caution and even scepticism.

Challenging Issues of Determination of Court Jurisdiction over Adoption of Procedural Decisions in Exercising Judicial Control at Pre-Trial Criminal Procedure Stages

Challenging Issues of Determination of Court Jurisdiction over Adoption of Procedural Decisions in Exercising Judicial Control at Pre-Trial Criminal Procedure Stages

Peranan Jaksa Penuntut Umum dalam Pengembalian Barang Bukti Kepada Pihak Korban Tindak Pidana di Wilayah Hukum Kejaksaan Negeri Tanjung Jabung Timur

The criminal act committed is very closely related to the evidence or goods, while the evidence will be used to prove the criminal act committed before the court by the prosecutor. An item of evidence will be presented at the evidentiary hearing at trial. Regarding evidence, if the trial verdict states that the evidence will be returned to the party who has the rights, then this action is carried out by the prosecutor in accordance with his authority in implementing the judge's verdict which already has permanent legal force and the basis for this implementation is guided by the quote from the judge's decision. This research aims to study the legal regulations on the implementation of the judge's decision regarding the return of evidence and examine the obstacles to returning evidence to its owner by prosecutors. This type of research is empirical juridical research that uses primary data through interviews with the East Tanjung Jabung state prosecutor's office, as well as secondary data obtained through analysis of secondary, primary and tertiary legal materials. From the results of the research, it was concluded that the legal regulations regarding the process of returning evidence for criminal acts in the jurisdiction of the East Tanjung Jabung district court have gone through a process that involves determining the legal force of the decision and making a letter extracting the judge's decision. Generally, an extract of the decision is issued within approximately one week after the inkracht decision. The prosecutor will receive an excerpt from the decision to prepare a BAP for the judge's decision and prepare a BA for the return of evidence. Then the evidence will be handed over to the individual whose name is listed in the text of the decision made by the judge. There are no time provisions governing the collection of evidence by the owner whose name has been mentioned in the contents of the verdict, so the prosecutor must immediately return the evidence, this is due to concerns that the evidence could pile up at the Prosecutor's Office.

The Judicialisation of Parliamentary Privilege in Canada: A Cautionary Tale

Over the past few decades, Canadian courts have exerted strong influence over the meaning and operation of parliamentary privileges. Starting with a television producer’s Charter rights claim to access a provincial legislature’s public gallery and followed by an employment law claim made by the chauffeur to the Speaker of the House of Commons, the Supreme Court of Canada has articulated an approach under which judges closely scrutinise privileges invoked by legislatures when defending themselves against litigated claims. By applying the doctrine of necessity, Canadian courts make authoritative rulings on what counts as a valid legislative function and the processes and activities needed to fulfil those functions. Canadian courts also require the scope of parliamentary privileges to be pleaded in narrow terms that correspond to the details of a plaintiff’s claim, which has resulted in a hollowed-out conception of privilege over time. In scrutinising the necessity and scope of privilege, Canadian courts have chipped away at the separation of powers. Further, the Canadian approach unjustifiably prioritises the judicial vindication of private rights over the institutional needs of the legislature. Courts in other jurisdictions should reject the Canadian approach and avoid scrutinising the propriety of the exercise of privilege through a necessity test. Instead, courts should engage in a more limited jurisdictional test to confirm the availability of a relevant category of parliamentary privilege in law or historical practice. Judicialising parliamentary privileges weakens the autonomy and vitality of legislative institutions, with the Canadian approach serving as a cautionary tale. Ultimately, the legislature is accountable to the electorate for the exercise of its privileges. To promote fairness and reduce the risk of court interference, parliaments should strengthen the accountability and transparency associated with the exercise of their privileges, including by developing guidelines for their appropriate use.

Administering Electronic Testimony and Witness Examination in the Context of Electronic Arbitration and Court Jurisdiction

Administering Electronic Testimony and Witness Examination in the Context of Electronic Arbitration and Court Jurisdiction

Improving the Legal Regulation of Indirect Judicial Jurisdiction in the Eurasian Economic Union

Free cross-border circulation of court decisions is a necessary condition for successful integration. One of the main obstacles that states face in creating legal regulation in this area is the problem of the admissibility of foreign judicial jurisdiction, or, in other words, indirect judicial jurisdiction. The article discusses options for solving this problem.Aim and tasks. To propose options for improving the legal regulation of indirect judicial jurisdiction in the Eurasian Economic Union.Methods. This work uses both general scientific methods of cognition: analysis and synthesis, and specific scientific ones: formal logical, formal legal, comparative legal, and the method of legal forecasting.Results. Improving the legal regulation of indirect judicial jurisdiction in the Eurasian Economic Union is possible through the conclusion between the member states of the Eurasian Economic Union of an international treaty establishing unified criteria for direct judicial jurisdiction and conditioning the acceptability of the jurisdiction of a foreign court on compliance with these criteria. In the event that the competence of a foreign court is not based on the jurisdictional criteria contained in an international treaty, it is proposed to provide for the possibility of recognizing a foreign court decision if two conditions are met: first, there is a close connection between the court and the dispute or approval of the jurisdiction by the defendant; the second is compliance with the rules on exclusive judicial jurisdiction established in the national legislation of the member states of the Eurasian Economic Union.The author also proposes an option for improving the legal regulation of indirect judicial jurisdiction at the national level, both in the Russian Federation and in other member states of the Eurasian Economic Union. In particular, the option of introducing provisions on indirect judicial jurisdiction into national legislation is being considered, which would condition the acceptability of the competence of a foreign court by observing the criterion of a close connection between the dispute and the court that issued the judicial act, or the approval of its jurisdiction by the defendant, and non-contradiction with the criteria of exclusive judicial jurisdiction.Conclusions. The Eurasian Economic Union needs to create an effective mechanism for the recognition of foreign court decisions, which can be achieved, first of all, by improving the legal regulation of indirect judicial jurisdiction.

The system of administrative courts of the Federal Republic of Germany: organization and functioning

The article is devoted to the organization and functioning of administrative courts of general and special jurisdiction in the Federal Republic of Germany. Administrative justice in Germany is an independent branch of judicial power. It is represented by administrative courts of general and special jurisdiction and is separated from constitutional, general courts and courts of labor disputes.
 The system of administrative courts of general jurisdiction in Germany covers three levels: the administrative courts, the higher administrative courts of the states and the Federal Administrative Court in Leipzig. The administrative court is the court of first instance for most administrative proceedings. The higher administrative courts of the federal states are the appellate and cassation instance of the administrative courts. Each federal state has a Supreme Administrative Court, the states of Berlin and Brandenburg share a Supreme Administrative Court, which, with the exception of Bavaria, Saxony- Anhalt and the city-states, are not located in the capital of the state to emphasize their independence from the administration in terms of location. Higher administrative courts are courts of first instance in cases of judicial review of laws and regulations, prohibition of associations by state bodies, and approval of implementation of certain infrastructure projects. The Federal Administrative Court, located in Leipzig, is the court of appeal and cassation on matters of law. The legislature also gave the Federal Administrative Court first-instance jurisdiction in public law disputes between the federal government and non-constitutional Länder, bans on mergers by the Federal Minister of the Interior or approvals for certain infrastructure projects. In these cases, the Federal Administrative Court has jurisdiction of both first and last instance.
 A feature of administrative justice in Germany is the presence of special courts of administrative justice – financial and social courts with appropriate organization and functioning. The issue of the status of judges of administrative courts, non-professional judges, representatives of public interest, judicial administration, competence and jurisdiction was considered.