Rules Of Jurisdiction Research Articles

Значение подсудности в уголовном и цивилистическом процессе

The relationship between the procedural and judicial significance of jurisdiction, as well as its conditionality by criteria of a procedural and judicial nature, is considered. The predominantly technical significance of the institution of jurisdiction for procedural branches of law is determined. Examples of manipulation of jurisdiction in the field of arbitration, civil, and criminal proceedings are given. The refusal of alternative jurisdiction in criminal proceedings is justified. It is concluded that violation of the rules of jurisdiction is not considered an absolute basis for the reversal of court decisions.

Violation of the rules of subject matter jurisdiction in criminal proceedings

Violation of the rules of subject matter jurisdiction in criminal proceedings

Forum-shopping in criminal law: power and pragmatism in gayo, Aceh, Indonesia

In one of her earliest publications Keebet von Benda-Beckmann examined how villagers in West Sumatra engaged strategically in forum shopping and with shopping forums under conditions of legal pluralism. The insights in her article how this influenced the power constellation in the village have inspired many researchers to look at the interplay between justice seekers and forums for dispute resolution in a plural legal landscape, and how in this process authority is produced. Our article builds on Keebet’s work, looking at forum shopping in cases of sexual offences in Gayo (Aceh). We discuss how the post-conflict reform of criminal law in Aceh has led to a state-sanctioned condition of legal pluralism consisting of national law, customary (adat) law and Aceh jinayat (Acehnese Islamic criminal law). Village officials, human rights activists, police and prosecutors channel crimes into the legal system that best suits their goals – sometimes in conformity with, sometimes in violation of the formal rules of jurisdiction. The result is a new balance of power between these actors, in which – surprisingly – adat officials and police have gained most from the introduction of Aceh jinayat. However, the introduction of state legal pluralism has not produced competition between the constitutent legal systems, but rather expanded the potential for more differentiated responses to sexual offences in a society characterized by profoundly conservative values.

The Challenges Facing China's International Commercial Court System Under the "Belt and Road" Vision and China's Response

In order to provide all-round judicial guarantee for the high-quality development of the "Belt and Road", China established the China International Commercial Court in 2018 and achieved remarkable results after six years of construction. In recent years, with the increasing number of commercial disputes related to the Belt and Road Initiative, such as international trade, international logistics and international project contracting, the construction of China's international commercial courts is faced with difficulties related to insufficient international vision, backward jurisdiction rules, lack of appeal relief channels, difficulties in cross-border recognition and enforcement of judgments, and inflexible convergence of multiple dispute resolution methods. In view of this, the China International Commercial Court should be based on an international perspective, expand its jurisdiction to improve the jurisdiction rules, implement "two final trials" to reconstruct the appeal relief system, transform "factual reciprocity" to "constructive reciprocity" to ensure the cross-border recognition and enforcement of judgments, and constantly optimize the interface mechanism of litigation, arbitration and mediation has become an important way to solve the problem. It will help build a new situation of international commercial court.

Perspectives for Developing the Jurisdictions and Procedures of the Jordanian Administrative Judiciary: A Critical & Comparative Study

Objective: This study's objective is to reorganise the rules of jurisdiction of the Jordanian administrative judiciary and the procedures related to it by following the critical and analytical approach to the provisions of the effective Jordanian Administrative Judiciary Law No. 27 of 2014. Method: This research is based on collecting information from two primary sources. The first source is the collection of information and observations of Jordanian Jurists and others related to the (JAJL), which came in the form of criticisms directed at this law through websites. The second source of information gathering – which is no less important than the first – is the amended Law of the Egyptian Council of State No. 47 of 1972, through which we were able to believe in the basic points that must be amended in the (JAJL) in question to ensure the achievement of the public interest and the protection of individual rights. Results and conclusion: The study reached some conclusions and suggested recommendations, the most important of which is: The fact that achieving the advantage of litigation on two levels in the Jordanian Administrative Judiciary Law does not achieve social justice and protect the rights of individuals as it should unless it requires the specialisation of judges in the administrative field.

Is an EU Member State a weaker party in the context of the rules of jurisdiction in direct actions against insurers? Comments on the request for a preliminary ruling in the case Mutua Madrileña Automovilista, C-536/23

The request for a preliminary ruling in the case Mutua Madrileña Automovilista, C-536/23, puts to the ultimate test the concept of “weaker party” that underpins the …U rules of special jurisdiction in direct actions against insurers. The referring court asks whether an …U Member State, acting as a statutory subrogee to the rights of its employee injured in a road traffic accident, can rely on the rule of special jurisdiction established by Articles 11(1)(b) and 13(2) of the Brussels I bis Regulation for the benefit of injured parties. Against this background, first, the preliminary question is based on a premise that the …U Member State may sue the insurer “before the courts for the place where the official […] is domiciled”. This premise seems misguided. In fact, a successor in title of a directly injured party may bring the direct action before the court of their own domicile Second, it is immaterial that an …U Member State is a subject of public international law. Unless the state acts iure imperii [arg. ex Art 1(1) of the Regulation], it can rely on the rules of jurisdiction provided for in the Regulation, including the rules of special jurisdiction in matters of insurance. Third, since the rules of special jurisdiction in direct actions against insurers are established for the benefit of weaker parties, they cannot be relied on by the “professionals in the insurance sector”. To verify whether a claimant qualifies as such a professional in the insurance sector, a two-tier analysis is proposed. In the first step, an abstract and generalising assessment is carried out in order to verify whether the claimant belongs to the insurance sector or has close ties with that sector as the result of dealing (litigating or settling) regularly with the insurance claims as the inherent aspect of the commercial activity model they adopted or public mission they were entrusted with. In the second step, an additional check has to be made in order to ascertain whether the direct action brought against the insurer fits within such a general and abstract profile of the claimant or not. If the direct action does not originate in such a commercial activity or public mission, the claimant cannot be considered as a “professional in the insurance sector” in the context of the specific proceedings. In the light of the above, the contention is that an EU Member State, which, in its capacity of an employer continued to pay the remuneration to its official who became unfit for work as a result of a road traffic accident and which subrogated to the official’s rights vis-à-vis the insurer that provides the civil liability insurance for the vehicle involved in that accident, may rely on the rule of special jurisdiction set forth in Articles 11(1)(b) and 13(2) of the Brussels I bis Regulation.

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.

Re St Thomas the Apostle, Killinghall

The petitioners sought a faculty for the disposal by sale of two damp-affected paintings. The DAC recommended the proposal. The court, out of an abundance of caution, directed consultation with the CBC pursuant to rule 9.6 of the Faculty Jurisdiction Rules 2015 (under which consultation with the CBC is mandatory on a petition for the conservation, alteration or disposal of an article of special historic, architectural, archaeological or artistic interest). The CBC preferred to see the conservation and retention of the paintings, there being a strong presumption against the sale of church treasures. The petitioners described the CBC's position as unrealistic, and the DAC noted that the paintings were of limited significance; they would continue to deteriorate if kept in the church; and the petitioners had neither the funds nor the inclination to seek them to fund their restoration.

부적절한 법정지의 법리에 관한 대체적 법정지의 요건과 판결의 집행가능성 요소

In a globalized world, business activities are becoming increasingly de-nationalized and with that cross-border disputes are also on the rise. Parties seeking to resolve international disputes through trial may have an incentive to engage in forum shopping, which is the practice of selecting a forum where they believe they are more likely to receive a favorable judgment. In response to such a complaint, the defendant may assert forum non conveniens as a defense. Under the forum non conveniens doctrine, the court may dismiss a claim if it would cause undue inconvenience to the defendant, even if the forum has jurisdiction. The forum non conveniens doctrine has been developed mainly in the common law system, but Korea also introduced the doctrine in 2022 with the comprehensive revision of the Private International Law Act jurisdiction rules and has adopted it to a limited extent in line with the civil law system. Article 12, which stipulates this doctrine, however, does not specify specific standards for applying the doctrine, leaving it open to interpretation. Therefore, focusing on the United States, which has accumulated precedent on the forum non conveniens doctrine, this paper examines what constitutes an alternative forum and what the factors are for the enforceability of the judgment. The forum non conveniens doctrine in the United States involves first, examining whether an alternative forum exists, and second, applying a balancing test that weighs private and public interest factors, and determine whether deference should be given to the plaintiff's chosen forum. The enforceability factor is one of the private interest factors, which is important for plaintiffs' access to justice and judicial economy. Accordingly this study examines how the forum non conveniens doctrine is interpreted and applied in the United States, and then examines the forum non conveniens doctrine in Korea.

International experience in regulating of the pre-judicial investigation bodies jurisdictions

The article is devoted to the study of the concept and legal implementation of the institution of the pre-judicial investigation bodies jurisdictions in Ukraine and the legal systems of European countries and the USA.
 Analyzed the approaches to determining responsibility and the peculiarities of the organizational component of responsibility of pre-trial investigation bodies are also described.
 It is noted that the lack of detailed legal regulation of the institution of liability in Ukrainian legislation determines it necessary to search for approaches in scientific doctrine, as well as practical solutions based on the example of existing legal systems of other countries.
 The article analyzes that, similar to the provisions of Ukrainian legislation, the definition of the concept of jurisdiction in various legal systems is quite rare. In addition, the analysis of different jurisdictions indicates the similarity of approaches to understanding the rules of jurisdiction. Similar to the Ukrainian legislation, the aspect of determining and changing responsibility belongs to the powers of the prosecutor’s office.
 It was noted that one of the main differences between pre-trial investigation bodies jurisdiction in Ukraine and in other European countries (Germany, France, and England) and the United States is the presence in Ukraine of institutionally separated subjects, in addition to the police, which are authorized to carry out pre-trial investigations.
 The legal norms that indicate the rules of jurisdiction determine the direction of activity of pre-trial investigation bodies, but unfortunately there is no regulation of the relationship between the investigation and compliance with the relevant jurisdiction. Moreover, the tendency to increase the number of pre- trial investigation bodies requires detailed legal regulation and clear procedural and procedural norms which would provide an opportunity to avoid a conflict of jurisdiction for pre-trial investigation bodies.
 Also was analyzed the European Union experience in solving the problem of the conflict of jurisdictions of bodies that carry out pre-trial investigation of member states. As part of this was described the work of the Eurojust which is authorized to solve problems with the specified conflicts of jurisdictions.
 Separately the article points out the relationship between violations of jurisdiction and the doctrine of «fruits of the poisoned tree» using the case law of the European Court of Human Rights and individual European countries as an example.

Несоблюдение правил подсудности гражданских дел: процессуально-правовые последствия

This article analyzes the procedural and legal consequences of non-compliance with the rules of jurisdiction in civil proceedings at its various stages. The author of the work concludes that consideration of the issue of jurisdiction of the application is the prerogative of the court of first instance. It is noted that violation of the rules of jurisdiction cannot be an unconditional basis for the cancellation of a judicial act. A doctrinal definition of the concept of “violation of the rules of jurisdiction” and a classification of violations are proposed.

Semantic-Rich Recommendation System for Medical Emergency Response System

The emergency response process consists of methodical and coordinated series of actions and protocols executed by individuals and organizations to proficiently address crises. When planning for medical emergencies, it is vital to work with responsive medical organizations to ensure good communication and coordination. Unlike e-government processes, emergency response processes are focused on knowledge and may frequently change as the emergency situation develops. It is important to change the emergency response plan for dynamic situations and the proposed method helps to create a flexible plan for emergency responses. The proposed approach uses a system for organizing knowledge to figure out the needs and the resources essential for an emergency. It helps to identify the organizations to be involved based on their rules for mutual aid and jurisdiction. Experimental analysis shows that the proposed method outperforms Smart-c and DCERP in suggesting a greater number of hospitals during medical emergency and achieves 0.8, 0.9 and 0.9 precision, recall, and f-measure approximately.

The Institute of Urgent Investigative Actions Requires Urgent Rethinking

New challenges to the society and the state, posed by criminality and manifested through a sharp increase in the number of grave and very grave crimes enhance the relevance of potentially effective legal instruments which are, as a rule, of inter-sectorial legal nature. They include urgent investigative actions, which for over 60 years have been considered an institute of the preliminary stage of investigation, and which flourished at a time when inquiry bodies did not meet any obstacles in initiating criminal cases for the crimes requiring a preliminary investigation. The authors describe the specifics of the institute of urgent investigatory actions and its difference from the procedural constructs that provide for investigatory actions in «emergency» cases. They analyze research publications, and use them to work out suggestions on improving the legal regulation of urgent investigatory actions. The authors also prove that the theoretical basis of the institute under analysis is isolated from the practice of investigating and solving crimes, it has become totally abstract and without any links to the actual practice. The practice of urgent investigatory actions carried out by the customs’ offices as a body of inquiry is summarized. Contrary to the opinion, popular among researchers, that the norms regulating the initiation of criminal cases by bodies of inquiry are not demanded in practice, the authors present statistical data illustrating the opposite situation. Using the specific examples of criminal cases, they demonstrate the opportunities for using the operative information collected by the body of inquiry within the institute of urgent investigatory actions to identify a certain person as a culprit in the crime. Special attention is paid to the analysis of the grounds and causes for initiating a criminal case established as a result of investigative search activities. The authors also remind us about the positive Soviet experience of conducting inquiries for the cases that demand a preliminary investigation. They present recommendations on the interaction between the bodies of inquiry and the prosecutor’s office regarding the applicability of the rules of investigative jurisdiction over criminal cases. They offer a complex operative-search and criminal procedure understanding of the phenomenon «urgent investigatory actions».

Modern Slavery in Liner Shipping: An Empirical Analysis of Corporate Statements

Forced labour is a widespread risk for workers in the shipping industry. Traditional approaches to tackling the problem rely on the rules of flag state and port state jurisdiction, leaving a significant margin of political discretion in dealing with violations of labour rights. This article examines whether private enforcement mechanisms in the form of tort actions can play a role in securing the labour rights of workers and providing them with access to remedies. Following recent case law, it examines the possibility of enforcing the duty of care as stated in the company materials, in particular the growing number of corporate annual reports. The article relies on empirical material, consisting of the statements published by shipping companies under the UK Modern Slavery Act [MSA]. In addition to the descriptive observations on compliance, the study carries out a content analysis of the statements, seeking to identify the patterns of reporting and industry best practices. The final part of the article examines whether corporate undertakings as laid down in modern slavery statements can serve as grounds for tort liability. Based on the empirical data, the study concludes that the statements provide insufficient grounds for holding companies liable for labour rights violations. Modern Slavery, Forced Labour, Liner Shipping, Annual Reports, Published Materials, Private Enforcement, Supply Chain Liability

Untangling the Jurisdictional Web in Cyberspace

The ambiguous theme of cyberspace and its broad widespread inflict a major effect on the legal procedures of litigations. Since litigation might include several nationalities, because of the cosmopolitan nature of cyberspace, determining the competent court is not as direct as traditional litigations. Cyber litigations complicate this procedural threshold as the traditional application of jurisdiction determinants might not suit cyber disputes. Furthermore, jurisdiction conflicts in cyberspace frustrate settling the dispute as courts avoid giving their judgments due to invalidity. Therefore, these conflicts introduce a modern issue to private international law theorists. It is indisputable that drafting obvious jurisdictional rules enhances the rule of law in cyberspace. Thus, the research analyses this issue and establishes a comparison to determine the state of the art regarding it. The article reviews the relevant academic contributions and legislation to point out how they crystallize the aspects of the research question. Besides, it studies relevant case laws from the UK and US judiciaries to conclude the legal principle they adopt to settle these conflicts and to enhance the validity of their judgments. Eventually, it introduces a comprehensive theory on settling jurisdiction conflicts regarding cyber litigation, which enhances the rule of law in cyberspace. 

Trans-Tasman Challenge

The Trans-Tasman Proceedings Acts took effect in Australia and New Zealand in 2013, and since then have created a well-functioning trans-Tasman judicial area in which the process of all Australian and New Zealand courts can be served, and the judgments of all of those courts can be enforced, anywhere in New Zealand or Australia. The unquestioned jurisdiction that is given to all Australian and New Zealand courts in trans-Tasman cases is also limited only by principles of forum conveniens and the enforcement of choice of court agreements. In Zurich Insurance Company Limited v Koper (‘Zurich Insurance’), the validity of the Australian rules of jurisdiction under the Trans-Tasman Proceedings Act 2010 (Cth) was challenged. The New South Wales courts and the High Court of Australia all rejected the challenge. This article is an account of the constitutional considerations that were canvassed throughout the Zurich Insurance litigation, including the possibility that a High Court majority recognised a positive constitutional implication when upholding the personal jurisdictions created by the Trans-Tasman Proceedings Act 2010 (Cth) and the recognition of a federal power to extend the jurisdiction of state courts in all international cases. It also undertakes an analysis of the private international law issues of Zurich Insurance: the clarification of the effect of the Trans-Tasman Proceedings Acts; and the unsatisfactory conclusions reached on the territorial application of the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) — the issue that forced the need to consider the validity of the Trans-Tasman Proceedings Act 2010 (Cth) in the first place. In this respect, a plea is made for Australian state parliaments and courts to avoid extra-territorial overreach in the application of state legislation.

CONTRACTUAL TERRITORIAL JURISDICTION IN THE CIVIL PROCEDURE OF THE REPUBLIC OF KAZAKHSTAN: QUESTIONS OF THEORY AND PRACTICE

The right to judicial protection is directly related to the provision of subparagraph 3 of paragraph 3 of Article 77 of the Constitution of the Republic of Kazakhstan, that no one can change the jurisdiction provided for by law without his consent. The correct determination of the jurisdiction of a particular civil case to a particular court is a prerequisite for exercising the right to appeal to the court and ensuring access to unhindered judicial proceedings. The article is devoted to the issues of reforming the institution of jurisdiction in civil proceedings. The relevance of the topic is due to changes in the current Civil Procedure Code of the Republic of Kazakhstan, as well as the lack of scientific research concerning the study of the updated institute of jurisdiction in civil proceedings. In the theory of civil procedural law, there is no generally accepted notion of contractual extraterritorial jurisdiction. It is necessary to consider the fact that it is the rules of jurisdiction that create serious difficulties in law enforcement. The problem of the correct determination of jurisdiction is very important for the judiciary. The purpose of writing this scientific article is to analyze changes in civil procedural legislation on the issue of contractual extraterritorial jurisdiction. Methodological basis: systematic, descriptive, comparative legal. Private scientific methods were also used: the legal-dogmatic method of interpreting legal norms.

Consumer Jurisdiction and Choice of Law Rules in European and Chinese Private International Law

This article compares consumer jurisdiction and choice of law issues in China and the EU. It aims to answer the following questions. What is the notion of consumer? Are farmers, package travel tourists and timeshare tourists consumers? Are dual-purpose contracts consumer contracts? Is a consumer jurisdiction rule needed in China and if yes, under what ground and with what conditions? Is choice of court agreement in consumer contracts valid? How to limit the exercise of party autonomy and what role mandatory provisions may play? Shall consumer contract and tort claims be subject to the same applicable law? Based on a comparative analysis with European law, this article concludes that to improve cross-border consumer protection, China should reform its law to include package travel contracts and timeshare contracts into consumer contracts and determine the nature of dual-purpose contracts pursuant to their primary purpose. Moreover, the current limitation on party autonomy should be lifted by providing freedom to both parties and relying on mandatory provisions as a safety valve. The consumer choice of law rule and its interaction with the general contract choice of law and tort choice of law rule needs to be reexamined.

Judicial protection of freedom of entrepreneurship in Ukraine

The article analyzes the competence of the court in the area of protection of freedom of entrepreneurial activity, which is formed from the system of procedural rules of administrative jurisdiction. It is determined that the rules of administrative proceedings have procedural advantages over other judicial jurisdictions, which strengthen the guarantees of the State's implementation of its constitutional obligations in the area of guarantees and protection of freedom of entrepreneurship in Ukraine. Thus, the principle of officialdom obliges the administrative court to be procedurally active, which is necessary to investigate all the factual circumstances of the court case on its own initiative. An administrative court may not refuse to accept a claim and resolve a court case regarding guarantees of freedom of entrepreneurial activity on the grounds of unclear, contradictory or absent legislation, the subject of legal regulation of which is the issue of economic (entrepreneurial) activity. It is stated that national courts, when resolving disputes in the area of ensuring freedom of entrepreneurial activity, have formed a number of legal positions, namely: a business entity is not obliged to provide a license to a regulatory authority if the economic activity it carries out is not subject to licensing; about the existence of discretionary powers of a public authority in the area of granting licenses for certain types of economic activity; ways to resolve the «hierarchical conflict of regulatory legal acts» regarding the conduct of economic activity. In the sphere of ensuring freedom of entrepreneurial activity, a number of problems have also been identified, which are specified in this publication, which requires systematic steps from the state to eliminate them. Key words: freedom and guarantees of entrepreneurial activity, legal positions of the court, public law dispute, constitutional obligations of the state.

Ibero-American Transnational Families: a review of the international judicial jurisdiction rules that accompany migrant women

This paper provides some keys to better respond to cases of parental responsibility that arise in transnational families. In particular, we look at women of Ibero-American origin who have arrived in Spain in an economic migration leaving their children in the care of relatives or close people in their States of origin. To do this, firstly, an analysis of the differences between transnational and cross-border families is made, emphasizing the family relocation that exists in transnational families and the need, therefore, as a singular reality, to also provide specific answers. Next, the rules of international judicial jurisdiction are analyzed, in particular, the Hague Convention of 1996 and it is analyzed, through various sentences, how the Spanish courts have applied it. In this application, it is detected that there is an absolute lack of gender perspective and the need for flexibility in the responses, taking into account the special situation in which mothers, residing in Spain, find themselves with their children in their States of origin.