Jurisdictional Provisions Research Articles

Comparative Study: The New Legislation of Foreign-Related Civil Jurisdiction in Japan

The Japanese Civil Procedure Code has been amended several times since its promulgation in 1890, which is currently in effect from June 1996. But the Procedures Code has not made explicit provisions on foreign-related civil jurisdiction. In the previous cases, the Japan Supreme Court (Supreme Court) established that the practice of establishing jurisdiction over international civil and commercial cases by the application of domestic civil jurisdiction provisions clearly complies with the procedural justice while in the latter case, the Supreme Court established the principle of special circumstances in a foreign-related case. Although the Japanese court has jurisdiction over the analogy or principle of domestic civil jurisdiction rules, the courts should not exercise jurisdiction if there are other special circumstances. This is based on the two precedents of the Supreme Court, through the legal development by Japanese courts, many binding precedents has been formed in the rules of international civil jurisdiction of Japanese courts, and two conditions (or steps) have been established to determine the foreign civil jurisdiction of Japanese courts. First, the Japanese court has jurisdiction over a foreign-related civil case in accordance with Articles 4 - 12 of the Domestic Civil Jurisdiction Rules. Secondly, there is no special case that violates the concept of fairness and procedural justice between the parties.

As agências reguladoras e a arbitragem:

Um dos principais fatores de estímulo aos investidores a assumirem novos riscos, atraindo aporte de recursos necessários ao desenvolvimento dos setores regulados, consiste na possibilidade de se resolverem, com celeridade e eficácia, eventuais litígios decorrentes dessas atividades. O Poder Judiciário, imerso em demandas, não é atualmente capaz de oferecer a prestação jurisdicional no tempo necessário, sobretudo quando a questão envolve setores dinâmicos da economia, como aqueles regulados pelas agências. Esses litígios tratam invariavelmente de questões técnicas com alto grau de complexidade, e nem sempre o Judiciário reúne as características necessárias para resolvê-las adequadamente. Nesse contexto, a arbitragem instituída pela Lei nº 9.307/1996 apresenta-se como uma alternativa para a solução de litígios no âmbito do setor regulado. A arbitragem é, reconhecidamente, um dos meios mais eficientes para dirimir litígios complexos e com repercussões econômicas relevantes. O presente texto analisará a possibilidade de as agências reguladoras adotarem a arbitragem prevista na lei nº 9.307/1996 – instrumento reconhecidamente ágil, técnico e especializado – como método alternativo de resolução de litígios no ambiente regulado, buscando também definir os respectivos limites para a sua utilização nesse setor.

Post Kampala

Abstract Since the Kampala Amendments filled the placeholder in the Statute of the International Criminal Court (ICC) with a comprehensive definition of the crime of aggression, States Parties have felt encouraged to implement the so-called ‘crime of crimes’ into domestic law. This article gives an overview of how these early implementers defined the crime of aggression and designed provisions on domestic jurisdiction. The fast track approach to domestic implementation would have been to copy the definition contained in Article 8bis of the ICC Statute and extend the existing jurisdictional regime applicable to other international crimes. Instead, states often opted for a (slightly) modified definition and occasionally decided to deviate from the jurisdictional provisions applicable to other core crimes.

Judicialização das práticas trabalhistas: a questão da pejotização na jurisprudência do TRT–1

A pejotização se refere à situação na qual o empregado precisa constituir uma pessoa jurídica (PJ) a fim de que a sua contratação aconteça. Com isso, o contrato instituído é de prestação de serviços, e não de trabalho, o que resulta para o empregador no desencargo do pagamento de todos os direitos trabalhistas que estariam presentes se a contratação ocorresse mediante o reconhecimento do vínculo empregatício. Esta pesquisa estuda a pejotização no direito do trabalho por meio da análise de 402 decisões tomadas pelo Tribunal Regional do Trabalho da 1ª Região (TRT–1) entre os anos de 2010 e 2017, coletadas no banco de dados desse tribunal, bem como analisa os argumentos que mobilizaram os julgadores na formação de suas decisões. A contratação pejotizada tem sido objeto de muita demanda judicial, já que o empregado, ao término da execução dos serviços, busca a prestação jurisdicional na pretensão de ver reconhecido o vínculo de emprego, de modo a receber os valores referentes aos direitos trabalhistas então suprimidos. Os resultados apontam que a pejotização, mesmo após a reforma trabalhista, continua sendo julgada pelo TRT–1 como fraude à relação laboral, pois a imposição da constituição de PJ enquanto requisito essencial para contratação objetivaria, ao empregador, esquivar-se das obrigações de pagamento de encargos sociais e trabalhistas relativos ao empregado.

A DESJUDICIALIZAÇÃO E OS ATOS DE INVENTÁRIO E EUSUCAPIÃO EXTRAJUDICIAIS

The Judicial Branch responds by slowness in its jurisdictional provision, either by the lack of structure or civil servants in general. In view of this, the transfer of some judicial acts such as divorce, inventory and usucapião for Extrajudicial Services was consolidated. The purpose of this paper is to understand and demonstrate the consequences of this transfer of competence from the Judiciary to the administrative sphere, explaining the idea of the adjudication or extrajudicialization, and pointing out its result, with special focus for the acts of inventory and usucapião. The present work used researches to the national legislation, sites of Judicial and Administrative bodies, opinions, votes, ordinances, provisions and opinions relevant in the subject of study, using the deductive method to structure the information obtained. It is concluded that these changes have provided certain benefits both to the population and to the Judiciary itself, contributing to the simplification and debureaucratization of the system

민사소송법의 관할규정을 고려한 국제계약분쟁에서의 일반관할과 특별관할에 관한 연구

국제사법 제2조에서 국제재판관할의 결정기준을 규정하고 있지만 추상적 기준만 제시하고 있기 때문에 국제재판관할의 예측가능성이 떨어진다. 국제재판관할의 예측가능성을 높이기 위해서는 보다 정치한 결정기준이 필요하지만 현재로서는 해석을 통하여 최대한 예측가능성을 높일 수밖에 없다. 본 글에서는 국제계약에 한정하여 민사소송법의 관할규정에 참작했을 경우에 도출될 수 있는 국제재판관할에서의 일반관할과 특별관할에 관하여 검토하였다. 국제재판관할에서 일반관할은 민사소송법의 보통재판적에 상응하는 개념으로서 분쟁과 법정지 사이의 관련성을 고려하지 않고 피고의 소재지를 중심으로 결정된다. 이때 피고의 소재지는 법적 개념으로서의 주소가 아니라 사실적 개념으로서의 상거소라고 보는 것이 국제사법을 통한 준거법의 결정과 준거법에 따른 주소개념의 결정이라는 복잡한 과정을 회피할 수 있고 피고의 방어권을 실질적으로 확보할 수 있는 방법이라고 본다. 반면에 특별관할은 민사소송법의 특별재판적에 상응하는 개념으로서 분쟁과 법정지 사이에 실질적 관련성이 있는 경우에 비로소 인정된다. 계약의 경우에는 이행지, 영업소와 대리점의 소재지에 대하여 특별관할을 인정할 수 있고, 자회사의 소재지의 경우에는 자회사가 모회사의 대리인으로 활동하거나 사실상 모회사의 영업소로 활동하는 등의 예외적인 경우에만 특별관할이 인정될 것이다. 재산의 소재지는 당해 재산이 분쟁의 목적이라면 특별관할을 인정할 수 있지만 재산이 단지 금전채권의 강제집행의 대상이라면 분쟁과의 실질적 관련성을 인정할 수 없으므로 특별관할로 볼 수 없다.

A jurisprudência do Tribunal de Justiça do Rio Grande do Sul sobre o direito à saúde

O presente trabalho tem como objetivo delinear o entendimento do direito fundamental à saúde na jurisprudência do Tribunal de Justiça do Estado do Rio Grande do Sul. Sabe-se que o direito à saúde tem previsão constitucional e infraconstitucional, atribuindo a responsabilidade ao Estado para sua realização por meio de políticas públicas e programas de governo. Contudo, a via administrativa-executiva estatal encontra dificuldades na efetividade desse direito à todos os indivíduos, não atendendo satisfatoriamente a população. Diante desse cenário, a alternativa subsidiária torna-se a judicialização da pretensão, ou seja, o cidadão, objetivando a tutela do seu pleito à saúde busca-o na prestação jurisdicional. A crescente judicialização chama atenção ao passo que denuncia a inefetividade das políticas públicas, bem como impacta no entendimento do Tribunal referente à demanda judicial pleiteada. Indubitavelmente, o direito fundamental à saúde é objeto de um contingente considerável da judicialização, muito em razão do préstimo deficiente pelas instituições do país. Por meio da pesquisa qualitativa técnica de revisão bibliográfica e do estudo de julgados no TJRS, utilizando do método fenomenológico-hermenêutico, buscar-se-á delinear o entendimento do referido tribunal, em grau de apelação, referente o fornecimento de medicamentos pelo Estado, como forma de compreender quais são as variantes que direcionam o (não) deferimento da pretensão judicial do indivíduo e como o direito à saúde se apresenta neste cenário jurisprudencial.

The contribution of ergonomics to the effectiveness of the public service: analysis of the implementation of the Electronic Judicial Process (PJe)

The Brazilian Justice, propelled by the benefits that the technological era can bring to the speed of the jurisdictional provision, proposed the implementation of the Electronic Judicial Process (PJe). In this context of demand for effectiveness, this article aims to identify and evaluate comparatively the ergonomics practices versus the recommendations of the theory on the search of the effectiveness of the Brazilian public service. The analysis focuses on the implantation of the PJe in the Brazilian Courts of Justice and the repercussions on the Quality of Work Life, identifying opportunities for the improvement of the results through the development and application of Ergonomics. The methodological strategy included a review of the literature, field observation, unstructured interviews, document analysis and comparative evaluation of theoretical models and practices in the implantation of the PJe. The results obtained were constituted by a chart illustrating the comparison between practices identified in the implantation of the PC and the possible opportunities of Light Improvements of the literature in Ergonomics. It could be observed that, after almost 10 years since the publication of Law 11,419 / 2006, which defined the implantation of the PJe in the Brazilian Judiciary, there are still few studies that consider and implement care regarding the ergonomic risks and the health and safety of the servers.

ICSID Tahkiminde Yetkiden Kaynaklanan Bazı Sorunlar

<span style="color: rgb(0, 0, 0);">In international investment law, both the investments and the rights of investors are usually protected by either Bilateral Investment Treaties or Multilateral International Treaties. As a multilateral international treaty protecting investors and their rights, The International Center for Settlement of Investment Disputes (ICSID) Convention has become widely recognized and applied by states and investors for the settlement of investment claims. The ICSID Convention is a treaty signed on October 14, 1966, by 159 signatory states and later ratified by 151 state parties. Its frequent application and wide acceptance, however, has given rise to a number of serious issues for both courts and practitioners, specifically the controversial issue of jurisdiction. In this article, some of the major problems arising from the application of the ICSID jurisdiction provisions are discussed and analyzed.</span>

The Questionable Legality of the Diverted Profits Tax Under Double Taxation Conventions and European Union Law

This article considers the operation of the UK’s Diverted Profits Tax (DPT), and postulates as to whether or not the tax is compatible with both the UK’s obligations under its Double Tax Conventions (DTCs) with other states, and with European Union (EU) Law. In both instances, analogous case law regarding the introduction of Controlled Foreign Corporation rules is considered. This article considers whether or not the DPT constitutes a unilateral extension of the UK’s jurisdiction to tax, in breach of the jurisdiction provisions of DTCs. In doing so, it considers whether or not the DPT is sufficiently similar to Corporation Tax such as to fall within the ambit of the UK’s DTCs. This article further considers whether or not the DPT is compatible with freedom of establishment and free movement of capital provided for by the EU Treaties. It considers the DPT in light of a string of EU jurisprudence that has consistently held that anti-avoidance measures in domestic tax laws are only compatible with EU law insofar as they apply to wholly artificial arrangements. This article concludes that in both instances, the legality of the DPT is highly questionable.

THE CHAGOS MARINE PROTECTED AREA ARBITRATION: EXPANSION OF THE JURISDICTION OF UNCLOS PART XV COURTS AND TRIBUNALS

AbstractThis article shows that the Tribunal in the Chagos Marine Protected Area Arbitration between Mauritius and the United Kingdom has contributed considerably to the creeping expansion of compulsory jurisdiction of courts and tribunals established under Part XV of the United Nations Convention on the Law of the Sea (UNCLOS). The Tribunal has employed three techniques to do so. First, it has read down the jurisdictional precondition to exchange views in Article 283(1) of the UNCLOS; second, it has expanded the limited scope of compulsory subject-matter jurisdiction under section 2 of Part XV by broadening the meaning of the phrase ‘any dispute concerning the interpretation or application of this Convention’ to include incidental, related—and through the backdoor of a balancing exercise—even extraneous disputes; and, third, it has restricted the limitations and exceptions to compulsory jurisdiction in Articles 297 and 298 of the UNCLOS. Few would have predicted in 1982 that a Part XV court or tribunal would—within the context of such a balancing exercise—ever find that a colonial era undertaking created binding legal obligations under international law and that the United Kingdom was obliged to return the Chagos Archipelago to Mauritius when no longer needed for defence purposes. The Tribunal's expansive reading of the jurisdictional provisions in Part XV opens up the possibility of future rulings, albeit incidentally, on issues that have little to do with the law of the sea.

Comparing Investment Provisions in India’s FTAs with India’s Stand-Alone BITs

Rising investment treaty arbitration claims against India have resulted in India taking first steps towards a new investment treaty practice. This article argues that this practice should aim at reconciling investment protection with investment regulation. By comparing the formulation of key jurisdictional and substantive provisions in India’s stand-alone bilateral investment treaties (BITs) with those in investment chapters in India’s free trade agreements (FTAs), this article shows that formulations in FTAs investment chapters often present a better textual basis to reconcile investment protection with investment regulation. This could be made part of India’s new investment treaty practice. The article also assesses the provisions in the 2015 draft Model Indian BIT and concludes that the draft tilts the balance too much in favour of the host State’s regulatory power.

The Duty to Investigate Zimbabwe Crimes Against Humanity (Torture) Allegations

On 30 October 2014, the Constitutional Court of South Africa held, in a landmark unanimous judgment, that South Africa had a legal duty to investigate allegations of crimes against humanity committed in Zimbabwe by Zimbabweans against their fellow citizens and ordered South African authorities to do so. This was pursuant to universal jurisdiction provisions of the Implementation of the Rome Statute of the International Criminal Court Act (ICC Act) — the domestic legislation that incorporated international crimes and other obligations pursuant to the Rome Statute of the International Court (ICC) into South African law. While, in coming to that conclusion, the Court’s analysis of international law on the duty to investigate in a universal jurisdiction context was unsatisfying, the judgment is innovative since the duty to investigate was ultimately grounded on a domestic duty to investigate all crime under domestic law — whether international or otherwise. This bold and fresh technique has the potential to be duplicated in countries that recognize a general duty to investigate crime, have incorporated international crimes into domestic law and recognize universal jurisdiction over such offences. Further, in an attempt to rein in the wide-ranging implications, the judgment articulated guiding principles and limitations that in some respects draw directly from the ICC. In particular, the ICC’s signature ‘unwilling or unable’ complementarity test and the ICC Prosecutor’s preliminary examination mechanism were, in effect, judicially sanctioned for application in the South African legal order. As a result, there is potential for the ICC’s best practices and case law to directly influence the direction of South African investigations, proceedings and jurisprudence in the future exercise of her universal jurisdiction over international crimes in a manner that is consistent with the Constitutional Court’s judgment and international law.

Brussels I: Recent Developments in the Interpretation of Special Jurisdiction Provisions for Internet Torts.

The paper deals with recent rulings of the European Court of Justice regarding the international jurisdiction of European courts in connection with infringements over the Internet. The aim of the paper is to illustrate a shift in the judicature of the Court and the need for a recast of the special jurisdiction provisions in the Brussels I Regulation.The main focal point is the ruling in the case C-170/12 Peter Pinckney v KDG Mediatech AG, which contains two surprising conclusions. Firstly, the intentions of the alleged infringer to target a certain jurisdiction are not to be taken into consideration. The decisive connecting factor is solely the fact that the harmful event may occur within the jurisdiction of the court. Secondly, the actions of anindependent third party can now establish the jurisdiction for a suit against the alleged infringer. This has been the subject of two other recent cases C-387/12 Hi Hotel HCF Sparl v Uwe Spoering and C-360/12 Coty Germany GmbH v First Note Perfumes NV. In both of these cases the sole actions of the alleged infringer would not suffice to establish the jurisdiction of the court in question. The paper tries to evaluate these rulings in light of procedural fairness and the traditional interpretation od special jurisdiction provisions.

The Jurisdictional Competence for the Recognition of the Foreign Judgements Compliant to Regulation (EU) No. 1215/2012

A thorny problem of the Regulation (EU) no. 1215/2012 concerns the determination of the international and territorial jurisdiction in matters related to the recognition as the main issue of a foreign judicial decision issued by a member state of the European Union. Considering the procedure identity existing between solving the recognition requests of the foreign judicial decisions and the one of the applications for refusal of enforcement of the same decisions, to which we also add the provisions of art. 24 paragraph 5 of the regulation, we deduce that for the recognition of foreign judicial decisions, the exclusive international jurisdictional competence belongs to the state on whose territory that recognition is sought. The competent court to decide, as a main issue, on the recognition of a decision given by a Member State of the European Union shall be determined based on the internal jurisdiction provisions of specific to each member state (for Romania by an extensive interpretation of article 1099 Code of Civil Procedure). A possible remedy of this gap in the regulation may be to introduce a new paragraph within art. 36 of the regulation which may give exclusive jurisdiction on the recognition of a foreign judicial decision, claimed as the main issue, to the court of the member state which receives the application, a court from the category notified to the Commission by the Member State addressed enforcing art. 75 letter (a) of the regulation.

Public and private features of the Cape Town Convention

The mechanism of the Cape Town Convention (CTC) – with its two instruments approach, public and private actors, the declarations system, and involving a single International Registry with global reach – is a complex one. Both public and the private features in the CTC interface closely to achieve the objective of facilitating asset-based financing at the international level across national borders. The public features of the Convention include the International Registry System with treaty status, the declaration system, the designated entry points and the jurisdiction provisions. They essentially serve the purpose of enabling the remedies set out in the CTC and the Protocol to be exercised in an appropriate and effective manner. The private features of the Convention include the remedies themselves, including the default remedies, remedies of speedy relief, self-help remedies, and remedies in insolvency. They are exercised by private parties in their own right. The purpose of the following article is to focus on the duality of public and private features in the CTC.

Decisions of British Courts during 2014 Involving Questions of Public or Private International Law

The claimant’s father was killed in a missile strike launched from a drone that was believed to have been operated by the US Central Intelligence Agency (CIA). He sought permission to appeal the decision of the Divisional Court (Moses LJ and Simon J) refusing permission to apply for judicial review.1 In the event that permission were granted, the claimant sought a declaration that a UK national who kills a person in a drone strike in Pakistan is not entitled to rely on the defence of combatant immunity. Accordingly, when an officer of the UK Government Communications Headquarters (GCHQ) passes intelligence on the location of an individual to US authorities for use in drone strikes in Pakistan, he/she may commit the offence of ‘encouraging or assisting in [murder]’ under section 44-46 of the Serious Crime Act 2007 (SCA), as read with the jurisdictional provisions in section 52(2) and Schedule 4 of that Act. These provisions are ‘by no means straightforward’, but a plain reading suggests that an individual may be liable for encouraging or assisting an offence committed wholly or partly outside England and Wales: The claimant submitted (1) that on this construction of the SCA, which is supported by the authors of Simester & Sullivan’s Criminal Law,3 the question for the court is not whether the principal has actually committed an offence triable in England and Wales, but only whether ‘any conduct which the UK national is assisting would be within the jurisdiction of the English court if the notional principal were a UK national’;4and (2) neither the CIA nor GCHQ officers are entitled to combatant immunity, either because they are not combatants or because there is no international armed conflict in Pakistan between the US and those targeted by the drone strikes.5 The claimant accepted that in any individual case an official would not be guilty of an offence unless he had the requisite mens rea and the defence of reasonableness under section 50 SCA was not available, but contended that these issues ‘are not material for present purposes’ because the claim concerned the lawfulness of the Foreign Secretary’s policy and not the guilt of individual officials or the lawfulness of drone strikes under US law.6

Amendment of the Provisions of the Dutch Penal Code Pertaining to the Exercise of Extraterritorial Jurisdiction

By the Act of 27 November 2013, the Dutch Government has radically changed the provisions of its Penal Code pertaining to the exercise of extraterritorial jurisdiction (Arts. 4-8 Penal Code). The new rules take effect from July 1st 2014 onwards. Most importantly, the Act widens the scope of the passive personality principle, generalizes the application of the domicile principle, which equates permanent residents with nationals for purposes of the application of the active personality principle, and establishes jurisdiction over foreigners present in the Netherlands who have committed a serious crime abroad if extradition proves impossible (aut dedere aut judicare), even if international law does not oblige the Netherlands to do so. In addition, the Act brings order to the Penal Code's hitherto rather chaotic jurisdictional provisions by, inter alia, grouping the jurisdictional mandates based on international legal instruments together in one provision, and limiting the number of jurisdictional grounds on which offences can be prosecuted.

The International Criminal Courtts Gravity Jurisprudence at Ten

This Essay, prepared for a symposium on “The International Criminal Court at Ten,” analyzes the ICC’s early jurisprudence on the gravity threshold for admissibility in Article 17 of the Rome Statute. It argues that the threshold, while useful in garnering support for ratification of the Rome Statute, now seems destined to play a minor role in determining the ICC’s reach. While there are multiple possible explanations for this development, an important doctrinal cause identified in the jurisprudence is that the gravity threshold for admissibility is in tension with the Rome Statute’s provisions regarding jurisdiction. At least with regard to the admissibility of cases (as opposed to “situations”), the judges have concluded that interpreting the gravity threshold to exclude certain types of defendants or crimes from the Court’s reach would amount to an impermissible revision of the Court’s jurisdiction. To avoid this outcome, the judges have developed a flexible multi-factor approach to the gravity threshold that enables them to justify admitting virtually any case within the Court’s jurisdiction. The Essay concludes by arguing that, in light of the tension between admissibility and jurisdiction, the judges are right to relegate the gravity threshold to a minor role in determining the cases the Court adjudicates. To the extent the judges seek to limit the ICC’s reach, they should do so by interpreting the Court’s jurisdictional provisions directly rather than through the back door of admissibility.

Arsenic in private drinking water wells: an assessment of jurisdictional regulations and guidelines for risk remediation in North America.

Arsenic is a known carcinogen found globally in groundwater supplies due to natural geological occurrence. Levels exceeding the internationally recognized safe drinking water standard of 10 μg/L have been found in private drinking water supplies in many parts of Canada and the United States. Emerging epidemiological evidence confirms groundwater arsenic to be a significant health concern, even at the low to moderate levels typically found in this region. These findings, coupled with survey data reporting limited public adherence to testing and treatment guidelines, have prompted calls for improved protective measures for private well users. The purpose of this review is to assess current jurisdictional provisions for private well water protection in areas where arsenic is known to naturally occur in groundwater at elevated levels. Significant limitations in risk management approaches are identified, including inconsistent and uncoordinated risk communication approaches, lack of support mechanisms for routine water testing and limited government resources to check that testing and treatment guidelines are followed. Key action areas are discussed that can help to build regulatory, community and individual capacity for improved protection of private well water supplies and enhancement of public health.