Law Jurisdictions Research Articles

Coordination of contractual and tort claims in the European law of jurisdiction

Under Article 7(1) and Article 7(2) Brussels I-bis Regulation of 2012, there is jurisdiction for contractual and tort claims. The delineation of these matters is not easy, particularly in cases where there is a concurrency of actions. The discussion is continuing even after the Wikingerhof judgment of the European Court of Justice of 24 November 2020. The present article discusses weaknesses associated with different concepts like duties and interests. The introduction of additional elements like the ‘indispensability’ of analysing the contract in cases of tort jurisdiction are difficult to apply and lead to new uncertainty. The admissibility of annex jurisdiction for contract and tort would alleviate the problem.

Outsourcing Empire: International Monetary Power in the Age of Offshore Finance

Abstract Offshore finance allows foreign banks to create US dollars under the laws of an offshore jurisdiction. How and why does this affect international monetary power? Conceptually, I argue that offshore finance bifurcates across borders the shared power of the state and banks to create money, combining the US dollar with mostly English law. Empirically, I demonstrate that more US dollars are created offshore outside US jurisdiction than onshore within it. Offshore finance increases liquidity, at higher risk, and leads to a cross-border entanglement of issuing country, offshore financial centers, borrowers, and global banks. In short, offshore finance changes the power inherent in money. Consequently, international monetary power has become the ability to get access to offshore dollars in combination with the capacity to determine international liquidity and to set, select, or circumvent the related rules. It is constrained by the hierarchically organized social credit relations that money consists of. The international monetary power of the United States has become an instance of indirect rule with global banks having been delegated the prerogative of US dollar creation. As is common with indirect rule, it entails a difficult balancing act between geographical reach and centralization of power.

Recognising Palestinian Refugees: Applicability of Article 1D of the 1951 Refugee Convention in Turkey

Abstract The special international regime for Palestinian refugees established by Article 1D of the 1951 Refugee Convention has yet to receive sufficient attention in Turkish asylum literature. Although Turkish law has incorporated Article 1D, neither scholars nor practitioners have pushed for its implementation. This research contends that Palestinians should be recognised as refugees in Turkey. Despite Turkey only granting refugee status to individuals from Europe due to the Convention’s geographical limitation, this article argues that an exception should be made for Palestinians. To this end, this article addresses how Article 1D of the 1951 Refugee Convention applies in Turkey by focusing on the interplay between the Convention and Turkish laws and regulations, as well as considering recent case law in other jurisdictions, particularly in Europe. By doing so, it aims to demonstrate that it is possible, though challenging, to improve the legal status of Palestinians in Turkey, mainly through strategic litigation.

Fundamental Legal Conceptions and the International Law of (Civil) Jurisdiction

Fundamental Legal Conceptions and the International Law of (Civil) Jurisdiction

Biosimilar approval pathways: comparing the roles of five medicines regulators.

Biologics are playing an increasingly important role in health care globally but are placing a substantial burden on payers. The development of biosimilars-drugs that are highly similar to and have no clinically meaningful differences from originator biologics-is critical to improving the affordability and accessibility of these medications. Medicines regulators, however, have had varied success with biosimilars to date. We examined agency guidance documents, peer-reviewed articles, and gray literature related to biosimilars in Australia, Canada, the European Union, the United Kingdom, and the United States to evaluate variations in the approaches to biosimilar approval taken by their respective medicines regulators. We found that the medicines regulators take similar approaches to biosimilar approvals, but that differences in their policies and their jurisdiction's laws regarding testing requirements, indication extrapolation, exclusivities, and substitution may contribute to the varied successes of biosimilars observed. Policies supportive of product-specific guidance, extrapolation, shorter exclusivity periods, and substitution were correlated with greater success in biosimilar approval and uptake. As medicines regulators work to promote biosimilars, understanding the impact of these laws and policies is crucial. Reforms consistent with these policies can create regulatory environments more supportive of biosimilar approvals, promoting access to affordable biologics for patients globally.

Transnational law as an enabler of digital trade

Abstract History records that trade and trade finance, vital to economic advancement and prosperity, have benefited profoundly from technological evolution and accompanying supportive transnational law. Today, the blossoming of technology, most notably digitalization, has the potential to greatly facilitate both domestic and international trade and, just as importantly, to assist in fulfilling the environmental and social goals critical to meet the UN Sustainable Development Goals and the Paris Agreement. However, obstacles to digital trade arise from the existing legal and regulatory frameworks. Accordingly, legal reforms are overdue. Impetus is now needed to create a fully supportive transnational legal environment. There are several examples of where the technology exists, but the law frustrates its effective deployment. The laws of most jurisdictions require certain trade documents (like bills of lading, payment, and title instruments) to be recorded in a tangible form (paper). The International Chamber of Commerce (ICC) estimates that digitalizing trade documents could reduce transaction costs by 80 per cent and eliminate billions of paper documents in the trade system. A limited number of jurisdictions have reformed their laws to address this gap and innovative private sector actors have taken the initiative to benefit from these reforms. An example includes the development of the Distributed Ledger Payment Commitment by BAFT that relies on narrow but effective changes in Delaware law governing promissory notes; others chose to be governed by Singapore law, which recently amended to align with the Model Law on Electronic Transferable Records (MLETR). Law can be an enabler of digital trade. To this end, work has begun, including by the ICC and the International Institute for the Unification of Private Law. But the reform needs to be accelerated. This article considers the benefits of digital trade, key legal obstacles, and how transnational law can enable innovation and digitalization not only of the vast volumes of paper but of the entire trade and trade finance processes.

Регулирование цифровых платформ в Бразилии: политический контекст согласования новых законов

Brazil is a major market and both the G20 and BRICS member. It is particularly important to analyse Brazil’s positionon digital platforms and markets regulation in the context of its G20 Presidency, where since the beginning of the year ithas been trying to agree on common solutions to regulate digital platforms, especially in the aspect of content moderationand the fight against fake news. The fight against misinformation and hate speech is one of the central themes of Brazil’s2024 G20 presidency programme, which aims to ensure the integrity of information in the digital environment. Accordingto Brazilian officials, preventing the spread of misinformation requires action on four directions: guaranteeing regulationby holding digital platforms responsible for the dissemination of illegal and harmful content, implementing media educationstrategies, strengthening professional journalism, and expanding public policies aimed at disseminating correct informationto the public.The aim of this article is to identify Brazil’s main priorities in digital platforms regulation. Project laws dedicatedto the regulation of digital platforms are analyzed, as well as the political context of their submission and consideration,because they were proposed during and following the 2018 and 2022 electoral campaigns. Coordinating positions with Brazilon the regulation of digital platforms may help to better address the interests of developing countries, as well as marketswhere large technology companies play a significant role but are subject to the laws of other jurisdictions

International enforcement of cryptocurrency laws: Jurisdictional challenges and collaborative solutions

The rise of cryptocurrencies has presented new challenges for regulators around the world, particularly in terms of enforcement across international borders. This abstract explores the jurisdictional challenges faced by authorities in enforcing cryptocurrency laws and proposes collaborative solutions to address these challenges. Cryptocurrencies operate on a decentralized network, making them difficult to regulate within traditional legal frameworks. Jurisdictional issues arise when a cryptocurrency transaction involves parties in different countries, as it is often unclear which jurisdiction's laws apply. This ambiguity can lead to regulatory gaps and enforcement challenges, allowing illicit activities such as money laundering and terrorism financing to flourish. To address these challenges, collaborative solutions are needed. International cooperation between regulators, law enforcement agencies, and industry stakeholders is essential to ensure effective enforcement of cryptocurrency laws. This cooperation can take various forms, including information sharing, joint investigations, and the development of common regulatory standards. One example of successful collaboration is the Financial Action Task Force (FATF), an intergovernmental organization that sets standards for combating money laundering and terrorism financing. The FATF's guidance on virtual assets and virtual asset service providers has helped to clarify regulatory expectations and promote consistency in enforcement efforts across jurisdictions. Another example is the Joint Chiefs of Global Tax Enforcement (J5), a coalition of tax authorities from five countries that work together to combat international tax evasion. The J5's focus on cryptocurrency-related tax crimes highlights the importance of cross-border cooperation in tackling cryptocurrency-related illicit activities. In conclusion, while jurisdictional challenges remain a significant hurdle in the enforcement of cryptocurrency laws, collaborative solutions offer a path forward. By working together, regulators, law enforcement agencies, and industry stakeholders can address these challenges and ensure that the benefits of cryptocurrencies are realized while mitigating their risks.

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.

Rethinking Jurisdictional Barriers to Practising Law Abroad: A Soft Technological Deterministic Approach

The regulation of legal practice has been based predominantly on geographical boundaries. To varying degrees, foreign lawyers are prohibited from engaging in the practice of law in host jurisdictions without local admission, and in some cases with the added complexity of nationality or residency requirements. This is notwithstanding that increasing international trade and other transnational activities, enabled by advancements in technology that facilitate efficient transportation and communication, are creating a growing demand for legal services across borders. While much has been written about how technology is changing the nature of legal practice, the approach taken by this article is to assess whether technology is playing this change-role in a solely deterministic manner. In examining this question, this article applies soft technological determinism to argue that, while technology is an important factor, it does not have a mono-causal effect in shaping changes to cross-border legal practice. Rather, these changes are being influenced by an interplay of technological progress and non-technological factors such as similarities in legal systems, harmonisation of laws and trade affiliations.

Faces of Inequality: Reflections on Exceptional Developments

AbstractIn Faces of Inequality, Sophia Moreau puts forward a pluralistic theory of how discrimination wrongs people. I approach Moreau's ideas not as a legal philosopher or theorist, but as an empirical and socio-legal scholar of equality law. In this commentary, I pick up on five provocations that emerge for me from Moreau's work: on reasonable accommodations, on comparison in equality law, on the public/private divide, on the justification of discrimination, and on discrimination as a personal wrong. While Moreau's work is grounded in the common themes or shared features that emerge from equality laws across jurisdictions, I consider what these themes mean for the uncommon ground, drawing on exceptional developments in discrimination law in some Australian jurisdictions, and our experience with the “exceptional” protected characteristic of age.

Current Trends in the use of International Instruments in Ethiopian Court Decisions: Potential Lessons for Comparative Constitutional Law

Comparative law in general and comparative constitutional law in particular is a thriving field of legal scholarship in many states. The basic idea of investigating and studying the norms and institutions of other societies has been used to draw good practices and lessons that can assist in resolving contemporary political, social and legal problems in a particular society. While it is true that the use of comparative law in domestic jurisdictions should be socially and culturally grounded, it has been instrumental for developing optimal normative standards in many states. This includes an increasing academic interest to understand the normative and institutional challenges of different polities in order to entrench constitutional democracy and enhance the protection of fundamental rights. Nevertheless, there is also a significant misconception and overstated criticism on the use of comparative law by many scholars. This is all the more evident when it comes to the legal practice in Ethiopia. In this article, I analyze the different arguments presented for and against the use of the comparative method, and argue that there is a continued relevance of comparative constitutional law in Ethiopian legal practice. The fledgling jurisprudence and growing reliance of Ethiopian courts on international human rights law in some of their cases is testament to the continued relevance of international and comparative law in Ethiopia.

Dogmatic and Legal Grounds for the Administration of Mass Intentions by the Particular Church Legislator

Benedict XVI distinguishes between munus and potestas as useful concepts in understanding the authority of the diocesan bishop. While the concept of potestas goes back to the Roman law of jurisdiction, the munus terminology is relatively new, since it stems from the theology of Dietrich von Hildebrand, who distinguished between munus sanctificandi, munus docendi and munus regendi. As highlighted by Pope Benedict XVI, thanks to the orders of the episcopate, the bishop shares in the munus, which is not equal to potestas; therefore only the diocesan bishop, who persists not only in communio but also in communio hierarchica with the Catholic Church, enjoys legislative power, which he exercises directly; however, his sacred power of the sacraments can be exercised through sacred ministers, and in the case of the executive power also through the lay faithful, by virtue of missio canonica. The bishop implements that by administering Mass intentions and offerings donated in the diocese.

RIGHT TO DISCONNECT: COMPLEXITIES OF LEGALIZATION (IN THE CONTEXT OF INTERNATIONAL REGULATORY EXPERIENCE)

Objective: Issues of legalization of new digital rights are the subject of current discussions. To date, the need to consolidate the human rights, inextricably linked to the process of digitalization of society, is recognized in many international agendas. The right to disconnect is one of these rights, and the inclusion of it in the Loi Travail was the first step towards incorporating new digital human rights into national law. Despite the fact that the regulation of the right to disconnect is being discussed at the international level, countries are very cautious about this category in their national labor laws. Purpose: to identify the problematic aspects of the legalization of the right to disconnect in labor relations through the prism of the analysis of the legislative experience of states of various legal jurisdictions. Theoretical framework: The study of the regulatory landscape of foreign states in relation to the right to disconnect contributes to the consolidation of expertise about approaches to the legal protection of employees. Based on the above, when analyzing the literature, the list of sources under study included research papers, articles, and reviews related to the legalization of the right to disconnect in labor relations based on labor legislation at the national level, as well as at the level of collective agreements and corporate culture. Methods: The research methodology is based on the main method of legal science – legal hermeneutics. When reviewing the research literature on the topic and including sources in the scope of the study, we were guided by the criteria of a systematic literature review using the Preferred Reporting Items for Systematic Reviews and Meta-Analyses method. The study also used the clustering method to determine the jurisdictions being studied. Result & Conclusion: This knowledge will help to identify the main difficulties of direct legalization, the reasons for the implicit recognition of the right to disconnect and will help to identify effective methods of law-making in the future. As a result of an inductive analysis of specific examples of the legal regulation of the right to disconnect in the national laws of various jurisdictions, we have identified the main obstacles to legal consolidation and strategies for the legalization of the right to disconnect. Implications of research: The research identifies the main factors influencing the legalisation of the right to disconnect at the legislative level. It also categorises the strategies adopted by countries in different jurisdictions to regulate the right to disconnect in legal relations. Originality/value: Increased knowledge of work-life balance through the legal entrenchment of the right to disconnect in the employment relationship. The findings of the study can serve as a basis for reorienting not only the legal policies of states in the area of the right to time off, but also the strategies of companies to improve the situation of workers. Funding: This study was supported by the Science Committee of the Ministry of Science and High education of the Republic of Kazakhstan (grant no. fund this research AP19676064).

Consensus and Compulsion: The Extra-territorial Effect of Chinese Judicial and Specially-Invited Mediation in Common Law Countries

This article conducts exhaustive research on case law in major common law jurisdictions (Australia, Canada, Hong Kong, New Zealand, Singapore, the UK, and the US) regarding the recognition and enforcement of Chinese judicial mediation decisions (MTS). In contrast to the rich literature criticizing the systematic deficiency of Chinese judicial mediation where an adjudicator plays the dual role of mediator and judge in the same case and the consequent injustice to the parties, the deficiency is not an issue currently in recognition and enforcement of MTS in common law jurisdictions. Why is this so and what would be the future trend? Answering these questions, this article explores the recent expansion from judicial mediation to Specially-Invited Mediation at the people's courts in China and discusses whether the features of Specially-Invited Mediation impact the recognition and enforcement of MTS at the common law jurisdictions. It also addresses controversies on applicable law, challenges to the enforceability of civil liability clauses, debates on the finality of MTS, and recognition and enforcement of MTS under China's judicial assistance agreements, the Hague Choice-of-Court Convention, the Hague Judgments Convention, and the Singapore Mediation Convention.

LEGAL VALIDITY OF NOTARIAL DEEDS SIGNED WITH ELECTRONIC SIGNATURE

Currently, the profession of Notary holds significant importance in the economic landscape of Indonesia. However, there is a lack of legislation that enables Notaries to execute their duties by creating electronically signable deeds. In Indonesia, an authentic deed prepared by a Notary necessitates physical presence and cannot be executed electronically. This research seeks to identify the legal validity of notarial deeds signed with Electronic Signatures, particularly in Indonesia and New South Wales, Australia. The study aims to understand the regulatory frameworks, examine the nature of Electronic Signatures, and evaluate the implications for contract law in both jurisdictions. Utilizing a Normative Research approach, this study employs the Statute, Conceptual, and Comparative Approaches. Primary legal materials include relevant Indonesian and Australian laws, while secondary and tertiary legal materials provide additional context. A literature review involving books, e-journals, and internet sources contributes to the analysis. The research reveals a gap in explicit regulations governing electronically signed deeds in both Australia and Indonesia. Despite practical application in public contracts, especially in business collaborations, concerns about vulnerability to forgery persist. The absence of clear regulations necessitates a physical appearance before a notary for authentic deeds. The study concludes that regulatory models addressing protection, implementation, and supervision of electronically signed deeds should be explored collaboratively by the Government and the House of Representatives in Indonesia.

The Case Law Of The Court Of Justice Of The EU On Art. 17 Of The 1999 Montreal Convention: An Evaluation From A Comparative Perspective

This paper analyzes the case law of the Court of Justice of the European Union (CJEU) on Article 17(1) of the 1999 Montreal Convention (MC99) regarding the liability of international air carriers for death or bodily injury to passengers. The interpretational principles and methods applied by the CJEU are examined, accounting also for the particularities of the EU legal order. Furthermore, the results reached by the CJEU are compared with the case law of other jurisdictions, mainly the US, and doctrinal writings. Nonetheless, this paper does not explore the pertinent issues from a de lege ferenda perspective. The paper concludes that the judgments of the CJEU on Art. 17(1) MC99 have interpreted the notions of “passenger,” “accident,” and “bodily injury” broadly, in a passenger-friendly way. Although the interpretation of ‘passenger’ does not differ from the established case law in other jurisdictions, some aspects of the interpretation of “accident” and the interpretation of “bodily injury” significantly depart from the view currently prevailing among courts internationally. The CJEU has yet to rule on the scope of the exclusivity of the MC99, under Art. 29 thereof, regarding personal injury of passengers. However, the expansive interpretations of “accident” and “bodily injury” by the CJEU limit the practical effect of Article 29 compared to other jurisdictions. Given the regulatory influence that the EU exercises world- wide, the CJEU judgments might guide courts also outside the EU. Although this would bolster passenger protection, it would exacerbate the already fragmented application of the MC99 internationally.

Current trends in the development of the Intellectual Property Law

This article examines the prospects for the development of intellectual property law in national jurisdictions (Russian Federation, Republic of Indonesia, Federative Republic of Brazil, African countries and others), as well as the place of intellectual property in the system of the UN Sustainable Development Goals. The main areas of activity of the World Intellectual Property Organization in the context of achieving these goals, the results of the implementation and use of digital systems and artificial intelligence in the field of intellectual property in national jurisdictions (for example, automation of patent application processes, of document evaluation, of sending documents to the applicant) are analyzed, also the results of the implementation and application of the process of accelerated examination of “green” patents in a number of countries, including the Russian Federation. During the study, general scientific methods were used: analysis, synthesis, logical method, generalization, as well as a special legal method and a comparative legal method. The author came to the conclusion that the introduction of artificial intelligence and digital platforms into the activities of organizations in the field of intellectual property significantly speeds up and simplifies the entire process from filing a patent application to issuing a patent; it is necessary to create a unified database of “green” patents and carry out comprehensive work to popularize activities in the field of environmental inventions, since currently the search for “green” patents issued in Russia is difficult, and in general, environmental inventions in Russia account for only 1% of the total number of inventions; it is necessary to develop interstate cooperation in the field of intellectual property and develop joint projects, since the problems that need to be solved in the process of achieving Sustainable Development Goals are global in nature.

Still Far From Home – How Personal Jurisdiction Doctrine Undercuts The Montreal Convention’s “Fifth Jurisdiction” For “Wandering Americans”

The rapid growth of global air travel in the mid-20th century gave rise to the problem of the “wandering American”—American residents whose air travel injury claims could not be heard in United States courts under the Warsaw Convention’s Article 28. Prominent cases prompted adoption of a “fifth jurisdiction” in the Montreal Convention’s Article 33, allowing injury suits in the Contracting State where an injured passenger had her “principal and permanent residence” so long as the international carrier served the forum. U.S. officials toasted their success in providing Americans with a domestic forum, but the adoption of the fifth jurisdiction did not finish the job. Even if an American plaintiff meets Article 33’s requirements, personal jurisdiction problems can bar the courthouse door. This article re-examines the problem of the “wandering American” and the fierce debates over the fifth jurisdiction at the 1999 International Conference on Air Law in Montreal through the lens of personal jurisdiction. It argues that the Montreal Convention would likely not have changed the results of prominent “wandering American” cases such as the shoot-down of Korean Air 007 or the hijacking of Air France 139. It comments on how the law is rapidly evolving as federal courts wrestle with whether Federal Rule of Civil Procedure 4(k)(2) can better address the lack of “minimum contacts” carriers have with most U.S. states and the lack of causal connections between forum and claims. Finally, it considers how Congress or American aviation authorities can better align Montreal’s promise of a “fifth jurisdiction” with American jurisdictional law.

Israel—estate planning for the unwary

Abstract The importance of estate planning cannot be emphasized enough, so much more so where the relevant individuals have a connection to more than one jurisdiction. Said connection may be with respect to citizenship, residency, ownership of assets or the jurisdiction of residence of the heirs. This article considers each of these factors separately. As the world is global, more individuals are affected by the laws of foreign jurisdictions upon their demise and if no planning has been effected during their lifetime, the heirs are left to clean up the mess.