Trends In Jurisprudence Research Articles

The Principle of Good Faith in the Palestinian Civil Code Draft and Its Role in Maintaining Economic Contractual Equilibrium at the Pre-Contracting Phase

The jurisprudential and judicial legal trend tends to apply the principle of good faith at the pre-contracting phase as one of the most substantial principles governing this phase, since it is inconceivable that the parties are to negotiate in bad faith, and then must implement the contract in good faith, in accordance with the traditional legal rule that “fraud spoils everything it touches”. However, the Palestinian legislature has ignored enacting legal provisions obliging the parties to abide by the principle of good faith in the pre-contracting phase causing a legislative deficiency in the legislative remedies of the subject of good faith in the pre-contracting phase. This paper seeks to prove that replacing a provision that requires good faith in negotiations with the provisions of tort liability causes many legal problems. To prove this, the legal provisions should be analysed which would also include determining the definition of the principle of good faith, and the function of that principle in achieving contractual equilibrium and the legal basis for this principle at the stage of negotiation which should also be analysed. Moreover, a comparative analytical approach with the French civil code is used to illustrate the Palestinian legislative deficiencies and the need to legislate a legal article which obligates the negotiating parties to behave in good faith, as this has become an unavoidable reality that should be dealt with to contribute to the stability of civil and commercial transactions. As such, the legal article should also specify the compensation to be claimed.

“A Constitution Similar in Principle to That of the United Kingdom”: The Preamble, Constitutional Principles, and a Sustainable Jurisprudence

In recent years, unwritten constitutional principles often find their place in Canadian constitutional law via their supposed foothold in the part of the preamble to the Constitution Act, 1867 that refers to “a Constitution similar in Principle to that of the United Kingdom”. Principles such as judicial independence, democracy, federalism, constitutionalism and the rule of law, and protection of minorities have been derived from the preamble. This article looks through over a hundred years of Supreme Court of Canada case law in order to determine what that preambular phrase has meant over time. It turns out that in the years immediately after 1867, it referred to what we now call political constitutionalism. A hundred or so years later, this same passage came to be associated with legal constitutionalism, though the Court has more recently backed away from the fullest implications of that approach. This article proposes a reading of the preamble and constitutional principles that is consistent with recent Supreme Court of Canada case law and defensible given current jurisprudential trends. That reading gives due regard to the traditional meaning of the rule of law all the while acknowledging that there are genuinely hard cases (particularly prevalent at the Supreme Court level) where neither rules nor principles provide clear answers. In those circumstances, respect for the rule of law requires as much wisdom and judgement as it does application of more prosaic legal skills. This article therefore recommends what is here referred to as a “sustainable jurisprudence” that offers an essential bridge between by now orthodox Dworkinian principle-based reasoning and contextual studies more commonly found in socio-legal, feminist, and other critical literature.

FLESHING OUT THE PROVISIONS FOR PROTECTING FOREIGN INVESTMENT

This article aims to analyse the jurisprudence developed by international courts and tribunals with regard to the standard of treatment of foreign investors, with particular focus on issues concerning expropriation. In doing so, it will analyse some of the standard-setting decisions and far-reaching implications of: the Iran-US Claims Tribunals, the International Court of Justice and the ICSID. It will also examine the recent trend in jurisprudence on the so-called regulatory takings of foreign investment. It will explore: (a) how the decisions of international courts and tribunals have ‘fleshed out’ the principles of the law of foreign investment on, inter alia, the definition of expropriation and nationalisation and determination of the quantum of compensation; (b) how the frontiers of expropriation have been extended to cover regulatory takings

Paradigm Shifts in Internalization of International Law: A Case Study of Growing Human Rights Jurisprudence in Nepal

The concept of internalization (domestication) of international law, underpinning the traditional theories of ‘monism and dualism,’ is being shifted along with the change in the contexts. Internalization can be mapped out through the process and result indicators of recognition of international legal norms through incorporation or transformation in the domestic laws, including the Constitution. The success of the internalization of international human rights law depends on the political will of the government and independent judiciary. The state practices, including decisions of the courts, discussed in this paper, further indicate the eventual changes in the process. Most importantly, the level of internalization can be measured by jurisprudential trends of application of international law in general and the international human rights instruments in particular. The second part of this paper minutely observes the 'bramble-bush effects' on the laws and jurisprudence developed along with democratization in Nepal since 1990. Nepal is an interesting case study due to its experiment of the theories of monism and dualism. Although the Treaty Act of Nepal explicitly recognizes the higher legal status of international agreements or treaties to which Nepal is a party, the Constitution of Nepal does not recognize the same. Nevertheless, the situation of ratification and accession of a large number of human rights treaties without reservation and growing thematic human rights jurisprudence reasonably justify the greater scope of internalization of international human rights laws in Nepal.

The computation of taxable income when accounting numbers are not reliable

PurposeThe purpose of this paper is to discuss the causes that justify the application of presumptions in corporate income taxation. The authors focus on motives showing a connection to errors or fraud in the recognition of operations by the financial accounting system. The research question can be framed as follows: How to define the frontier between reliable accounting records and unreliable information, the latter rendering presumptions as an admissible way of taxing income?Design/methodology/approachThe research design of this paper rests on two analytical steps based on the legal research method. The first step enquires, at the accounting level, how to define and quantify errors that render accounting statements inappropriate to assess firms’ performance and compute taxable income. The second step explores the practical application of presumptive tax concepts by Portuguese courts, to offer some criteria that can function as guidelines to firms and tax auditors.FindingsThe judgment about the boundaries of accounting errors that allow the use of presumption-based taxation is often decided by litigation. Portuguese jurisprudence provides strong evidence that presumptions should only be applied if, even by correcting of errors and inaccuracies, corporate real income cannot be obtained. The level of contamination must be obvious, and tax audits must present a strong and documented claim that presumptions are a last-resort mechanism to compute an appropriate tax base. The Supreme Tax Court has been applying a consistent approach characterized by: presumptive taxation is a last-resort mechanism; tax audits must prove that a generalized contamination of accounting data is observed; it is not possible to correct accounting errors, given their extension and depth, and the taxpayer did not submit contradictory solid evidence.Practical implicationsApplying, in practice, legal criteria to decide that accounting manipulation is so extensive that taxation must be based on presumptions is fraught with subjectivism. However, we offer an analysis where some guidelines to this complex issue are presented in a logical way. Principles-based taxation can, nonetheless, be applied with a significant degree of fairness and consistency.Originality/valueThe paper contributes to the literature by offering an analysis of the criteria used by Portuguese tax courts when deciding that accounting data can be disregarded and presumptions used as a tax computation tool. Given that the rule, in many countries, is to base taxable income on accounting records (albeit with adjustments established in Corporate Income Tax Codes), presumptions are a notable exception to this well-established rule. As such, taxpayers have a significant interest in knowing how courts rule on tax authorities’ use of presumptions. In this light, the paper has also potential value to professionals in the accounting and tax fields. They are often confronted with tax audits that apply presumptions. Therefore, knowing jurisprudential trends in the judgment of such, usually complex, cases is an important issue.

Revisiting the Role of Non-State Actors and International Courts in the Making of (Customary) International Law: General Considerations and the Case of Indigenous Peoples

The (May) 2016 draft conclusions of the International Law Commission (ILC) on the Identification of Customary International Law (CIL) confirm states as primary subject of international law, with a central role in the creation and development of international law, while denying a meaningful, direct role for non-state actors and courts in the creation and development of CIL. In this paper I question the stance taken by the ILC, combining general considerations about the current realities of global governance and the de facto impact of jurisprudence, with arguments focused on indigenous peoples’ rights to Free, Prior and Informed Consent (FPIC) in relation to (projects affecting) their ancestral lands. It is argued that when non-state actors engage in strategic litigation, (international) courts are enabled to develop steady lines of jurisprudence, thus strengthening the latter’s de facto impact on law-development. This role is further enhanced in case of transnational litigation and transnational judicial dialogue, entailing the emergence of similar lines of jurisprudence across jurisdictions/regions. The paper puts forward possible interpretations of the ‘general practice’ and ‘opinio iuris’ element of customary international law that would recognize a more outspoken role for non-state actors and international courts in the (co-)determination of customary international law. The importance of having a sufficient level of state practice that supports the norm for it to be elevated to the status of customary international law is not denied. However, the paper highlights the important role of non-state actors as norm entrepreneurs and of international courts as developers of international law, pointing to an incremental process whereby non-state actors and international courts are becoming co-determinants of international (customary) law. The paper goes on to trace the emergence of the right to FPIC of indigenous peoples with special regard for strategic litigation and jurisprudential trends across jurisdictions, as challenging, persuading and guiding states to adapt their practice while setting normative expectations about the appropriate behaviour towards indigenous peoples in relation to projects affecting their lands.

Investigating rape: human rights and police accountability

This paper explores the implications of D v Commissioner of Police for the Metropolis [2016] QB 161, a recent decision of the Court of Appeal in which two victims of a serial rapist successfully sued the Metropolitan police for investigative failures relying on Art 3 of the European Convention of Human Rights and the Human Rights Act 1998. The paper reflects upon the extent to which English courts are willing to recognise a duty to investigate within the wider context of civil claims against the police, particularly with regard to failures arising from the investigation of crimes of sexual and domestic violence. The comparative scope of tort and human rights claims is also considered, along with the evolving jurisprudential trend towards drawing a firm line between the two kinds of claim.

Tendencias jurisprudenciales del medio ambiente sano en la Corte Constitucional Colombiana = Jurisprudential trends healthy environment in the Colombian Constitutional Court

The right to a healthy environment plays an important role in the wellbeing of the community, not only at a national but an international level. The humanity, in its excessive desire for industrialization, has sacrificed this fundamental common good to all living creatures. Instead of care for it and protect it, it has being degraded to the point of destroying valuable ecosystems. Hence the need for this study, which aims to assess the mechanisms of protection and jurisprudential trends of the Colombian Constitutional Court with regard to a healthy environmental.

La nulidad de derecho público; tendencias jurisprudenciales

Much has been written about the nullity of public law in the Chilean constitutional and legal system, in terms of its legal nature and its effects. Notwithstanding this, we consider it pertinent to return to the matter in order to highlight the substantial change observed in the most recent jurisprudential trends, especially regarding the prescription of the patrimonial effects derived from the null act declared invalid by court decision.

La evolución jurisprudencial de la responsabilidad de la Administración Pública en Venezuela

This study proposes a critical review of the principle of the liability of the Public Power organs, from two views: at first, the analysis of the legal regime of the liability of the organs exercising administrative functions in Venezuela, and by the other side, systematization of the major jurisprudential trends on the liability system of public administration, since the birth of the Republic of Venezuela until the early decades of the century.

The European Court of Human Rights and Social Rights – Emerging Trends in Jurisprudence?

The European Court of Human Rights and Social Rights – Emerging Trends in Jurisprudence?

The ACA's contraceptive mandate: religious freedom, women's health, and corporate personhood.

On June 30 2014 the Supreme Court decided Burwell v Hobby Lobby Stores, Inc, in a deeply divided judgment that engaged religious freedom, women’s health, and corporate personhood. Three closely held for-profit organizations challenged the Affordable Care Act’s contraceptive mandate, objecting to four contraceptive methods that they believe acted as abortifacients, in violation of their Christian beliefs. The Court held that the contraceptive mandate violated the Religious Freedom Restoration Act of 1993, ruling that the Act’s protections extended to closely held corporations, with the mandate substantially burdening their religious freedoms. The Court acknowledged the federal government’s compelling interest in ensuring reproductive services, but said that the government could achieve this objective less restrictively, for example by directly funding the four contraceptive methods or by offering corporations the same accommodation given to non-profit religious organizations. The Court’s judgment privileges corporate rights and religious freedoms, while burdening women’s health and reproductive autonomy. The Court failed to recognize the role of reproductive services in women’s equal participation in social and economic life, and deferred to companies’ subjective beliefs that the four contraceptive methods can prevent a fertilized egg from attaching to the uterus, for which there is no scientific evidence. The Supreme Court also created significant ambiguity around the definition of a ‘closely-held’ corporation, the extent to which large companies have religious freedoms, and whether Hobby Lobby applies to medical services beyond contraception. As well as undermining women’s reproductive health, the case solidifies a jurisprudential trend towards broadening corporate rights, which is constraining public health regulation in a wide range of areas including marketing of junk food, tobacco, and alcohol.

PRINCIPIO ANTIDISCRIMINATORIO Y DETERMINACIÓN DE LA DESVENTAJA

El artículo examina algunos de los límites del derecho antidiscriminatorio en su actual configuración, a partir de las grandes tendencias que le dan soporte desde el punto de vista legislativo y jurisprudencial. El texto plantea una reflexión sobre los principios interpretativos tradicionales y los problemas de incorporación en el juicio de igualdad de estándares de orden explicativo y justificatorio que permitan captar los patrones o estructuras sociales de discriminación e identificar de forma más precisa a los sujetos. A tal efecto propone la ampliación del espectro argumental de la discriminación indirecta y la igualdad material, a través de criterios interpretativos adicionales derivados de categorías como la discriminación estructural y la interseccionalidad de las discriminaciones.

Canon Law: A Comparative Study with Anglo-American Legal Theory. By John J. Coughlin OFM

This is a pioneering book, accomplished in itself and potentially a stimulus for future jurisprudential trends in a comparative context. Professor Coughlin, a Catholic Franciscan priest who has studied, taught and practised civil and canon law, has chosen Catholic canon law as the ‘home system’ to compare and contrast in important respects with what can be termed Anglo-American legal theory. This legal theory has very familiar and distinguished exponents, among them: Austin, Dworkin, Finnis, Fuller, Hart and Raz. The simple listing of these names should, however, immediately caution against treating ‘theory’ in the singular as implying a greater intellectual uniformity than is in fact the case. One might also recall Finnis’s remark that theory regresses as well as progresses. As befits a comparative study, there is an element of critical reciprocity, but basically the objective is to clarify the nature of canon law, and also to suggest ways in which...

Culture Clash? World Heritage and Investors' Rights in International Investment Law and Arbitration

Can States promote economic development without infringing upon the cultural wealth of nations? Although economic globalization and international economic governance have spurred a more intense dialogue and interaction among nations—potentially promoting cultural diversity and providing the funds to recover and preserve cultural heritage—these phenomena can also jeopardize the cultural wealth of nations. Foreign direct investments have an unmatched penetrating force with the ultimate capacity of changing landscapes and erasing memory. At the same time, the increase in foreign direct investment has determined the creation of legally binding and highly effective regimes that demand States to promote and facilitate foreign direct investment. Has an international economic culture emerged that emphasizes productivity and economic development at the expense of cultural wealth? Does the existing legal framework adequately protect the cultural wealth of nations vis-a-vis economic globalization? This article surveys a selected sample of investment arbitrations, showing that while international investment law has not developed any institutional machinery for the protection of world heritage through investment dispute settlement (after all international investment law is not intended to protect cultural heritage), in recent years, a jurisprudential trend has emerged that takes cultural heritage into consideration. After defining the concept of cultural heritage disputes, this study analyzes and critically assesses these disputes and explores the use of cultural exceptions as a tool to prevent disputes in this field.

Report on the Italian Constitutional Court's Case Law

In 2010 the Italian Constitutional Court confirmed most of its recent jurisprudential trends. In some cases the Court dealt with totally new issues (i.e. same sex marriage and affirmative actions in electoral laws), but its most significant pronouncements were not characterized by unexpected overrulings. The Court was frequently involved in the field of constitutional compatibility of laws on immigration from various point of views: not only the protection of civil rights, but also the division of competences between the State and Regions. In this latter field the Court's role was particularly worthy of attention.

¿NO PUEDE APLICARSE EL ARTÍCULO 68 BIS DEL CÓDIGO PENAL DESPUÉS DE UNA COMPENSACIÓN RACIONAL ENTRE ATENUANTES Y AGRAVANTES?

A growing jurisprudential trend refuses to apply article 68 bis of the Criminal Code when, while determining the penalty, and once a rational compensation has happened between the mitigating circumstances and the aggravating factors, there remains only one highly qualifying reason. This article critically assesses said interpretation and concludes that there are no base arguments to justify it.

Jurisprudential trends about the present will of the patient before the advice of the National Commitee for Bioethics, October 24th 2008

Il presente lavoro costituisce un’analisi e un commento del Parere del Comitato Nazionale per la Bioetica (CNB) dal titolo “Rifiuto e rinuncia consapevole al trattamento sanitario nella relazione paziente-medico”, approvato il 24 ottobre 2008. La prima parte del contributo descrive sinteticamente la struttura e il contenuto del documento, il cui oggetto, secondo le parole dello stesso CNB, è così individuato: “rifiuto o rinuncia consapevole, totale o parziale, a trattamenti sanitari non iniziati o già intrapresi manifestata da un paziente informato e pienamente capace di intendere e di volere, e rivolta al medico (o all’équipe medica), titolare di fondamentali obblighi giuridici e deontologici e sotto la cui responsabilità il trattamento è in atto”. Operata questa prima delimitazione, la successiva importante distinzione che viene effettuata è tra un paziente autonomamente in grado di sottrarsi alla terapia indesiderata e un paziente che si trova in condizioni di dipendenza tali da rendere necessario l’intervento di un altro soggetto (il medico) per realizzare l’interruzione della cura. L’ultima parte del Parere presenta le “Conclusioni” che sintetizzano le riflessioni svolte ed espongono i profili di convergenza all’interno del Comitato. Gli Autori del contributo procedono quindi ad un’analisi critica del Parere a partire da queste “Conclusioni”, concentrando in particolare l’attenzione sulla distinzione, già messa in risalto, tra autonomia e dipendenza. Viene così evidenziato, da una parte, in relazione alla prima situazione, l’autentico fondamento dell’agire medico, anche in rapporto al consenso informato; dall’altra parte, riguardo alla situazione di dipendenza, si riafferma il valore giuridico del bene “vita” ed il ruolo dell’operatore sanitario per la tutela di essa. ---------- The present work constitutes of analysis and comment on the Advice of the Council on Bioethics entitled: “Conscious refusal and renunciation to medical care in the physician-patient relation”, approved on October 24th, 2008. The first part of this work describes synthetically the structure and the contents of the Advice, the object of which, according to the words of the same CNB, is: “The conscious refusal and renunciation, totally or partially, of medical care not started or already started by an informed and capable patient and directed to a physician, holder of fundamental legal obligation and medical ethics under whose responsibility the medical care is already in progress”. After this first delimitation, the succeeding important distinctions that come into effect between a patient who autonomously refuses the undesired therapy and a patient who is found in a state of dependence which requires the intervention of another subject (the doctor) to realize the interruption of the cure. The last part of the work presents the conclusions which synthesize the reflections made and the areas of overlap inside the Committee. The Authors proceed therefore to a critical analysis of the document apart from the conclusion, concentrating particular attention on the distinction already made between autonomy and dependence. They furthermore, in relation to the first situation, emphasize the authentic foundation of the medical act as it relates to informed consent; from another part, regarding the situation of dependence, they reaffirm the importance of life and the role of the physician in preserving it.

The Last Progressive: Justice Breyer, Heller, and 'Judicial Judgment'

This paper considers Justice Breyer's dissent in District of Columbia v. Heller - in which the Court established an individual right to bear arms - as a species of progressive jurisprudence. By progressive, I do not mean a political program but rather an approach to how the Supreme Court views its role and its work. Progressive jurisprudence was developed in the shadow of the relative formalism of the classical jurists and forged in the pragmatic philosophical tradition at the turn-of-the-century. Progressive judges eschewed absolutist constitutional claims; their decisions were fact-based, attentive to changing social conditions, and deferential to legislatures. That progressive attitude has been in decline for some time, for it comes from a conception of the judge that is at odds with two twentieth century jurisprudential trends. The first trend is the idea that rights should be understood as trumps, defined in opposition to the public interest. The second trend is a pervasive skepticism that legislatures or courts do or can ascertain and implement the public interest in the first place. This skepticism has generated repeated efforts to cabin judicial discretion out of a concern that judges are simply engaged in politics by another name. Justice Scalia - the author of the majority opinion in Heller - is deeply skeptical of legislative or judicial attempts to arrive at an honest assessment of the public good. Justice Breyer is less so; the problem of judicial power that Scalia's originalism attempts to solve is simply less of a concern for him.

The Return of Grand Theory in the Juridical Sciences?

It may be time to start talking in terms of a'Toronto school' of public law scholarship. Not only is the University of Toronto remarkable for the strength and depth of its output,' it is also in the vanguard of a turn to the 'grand style' of constitutional theory. 'Grand theory' in this context exhibits the following characteristics.2 In seeking to articulate the best general theory of the (liberal) constitution, the inquiry tends to take the form of a search for the 'good constitution'.3 This course of action is pursued in a philosophical manner, as one would expect, often fusing contemporary jurisprudential trends with'high' theory. Grand theory also tends to see the'cross-fertilisation' or 'migration' of constitutional ideas as a central facet of contemporary constitutionalism, a position that serves to undermine the claim that constitutional discourse is irreducibly jurisdictional.4 The application of grand theory techniques by some Toronto scholars has tended to produce strangely convergent results. Grand theory purports to be inclusive, in that it attempts both to accommodate diverse intellectual frameworks and to embrace as many (liberal) constitutions as possible. But this very