Law Jurisdictions Research Articles

The Enforceability Deficit Concerning Victims’ Remedies

Traditionally, states would not grant enforcement of criminal judgments from other states. As a result, there has been a large deficit in enforcement of monetary and other remedies for victims of criminal violations of international humanitarian law and international human rights law. In recent decades, there has been some progress in national law and treaty law towards allowing or requiring transnational enforcement of victims’ remedies contained in foreign criminal judgments. This article examines the traditional law, modern progress concerning criminal remedies, and recent United Nations work in the area. Even with modern trends in the international law of criminal enforcement jurisdiction, it may turn out that civil judgments of restitution and reparation will be easier to obtain and enforce than criminal judgments in many, if not most, cases.

Judgments Based on the Recognized Offense in Accordance with the Jordanian Jurisdiction Law: A Comparative Study

The Jordanian legislator amended the text of Article 31 of the Code of Criminal Procedure by amendment of Law No. 32 of the year 2017. Where the legislator was in favor of this amendment, where the second paragraph of the text of the amended article which states (and whoever violates this prohibition is arrested, he is then referred to the magistrate for trial). If the amendment is found to be contrary to the judicial officer, is transferred to the magistrate, While the legislator in accordance with the old text gives the prosecutor the right to arrest, which is sometimes arbitrary, and waste the rights of individuals and deprive them of their freedoms, if the Jordanian legislator by amending this text is successful, to protect freedom from aggression.

A Modern Doctrine of Administrative Jurisdiction: An Experience of Critical Rethinking

The article focuses on various approaches to the concept of administrative jurisdiction in modern Russian Law, analyzes the problems and contradictions in the development of the theory of administrative jurisdiction in administrative law. Methodologically, the article is based on the modern achievements of the theory of cognition. In researching the author applied theoretical, general philosophical methods (dialectics, system method, analysis, synthesis, deduction), traditional legal (formal-logical) methods. Turning to the question of the concept of administrative jurisdiction, the author touches upon the problem of its subject composition and comes to the conclusion about recognition of courts as subjects of administrative jurisdiction and the existence of administrative and judicial jurisdiction as a form of this legal phenomenon. In this regard, the author substantiates the view concerning the need to abandon “narrow-wide” understanding of administrative jurisdiction that is considered precisely as outdated stereotypes of the Soviet era.Also, the study of subjects of administrative jurisdiction that is associated with a legal conflict is of considerable interest. In this context, the author raises the issue of the legal nature of the court’s activities with regard to application of administrative responsibility, believing that, on the one hand, it is a manifestation of activities that can be considered as an independent form of administrative jurisdiction. On the other hand, this activity amounts to justice, within the framework of which the judicial power is exercised.Having studied administrative jurisdiction as a category that allows revealing the content and legal essence of this type of state activity, the paper defines administrative jurisdiction in the context of its connection with judicial jurisdiction and justice.

Intel, iiyama, Power Cables: A Revolution in the Treatment of Territoriality and Jurisdiction in EU Competition Law?

<i>Intel</i>, <i>iiyama</i>, <i>Power Cables</i>: A Revolution in the Treatment of Territoriality and Jurisdiction in EU Competition Law?

Chinese private international law and online data protection

This paper explores how Chinese private international law responds to online data protection from two aspects: jurisdiction and applicable law. Compared with foreign laws, Chinese private international law related to online data protection has two distinct features. Chinese law for personal jurisdiction is still highly territorial-based. The “target” factor and the interactive level of a website have no play in Chinese jurisprudence. Regarding applicable law, Chinese legislators focus more on the domestic compliance with data regulations rather than their extra-territorial application. Moreover, like foreign countries, China also resorts to Internet intermediaries to enhance enforcement of domestic law. These features should be understood in the Chinese contexts of high-level data localization and Internet censorship.

ПРАВОВЕ РЕГУЛЮВАННЯ УНІВЕРСАЛЬНОЇ ЮРИСДИКЦІЇ У НАЦІОНАЛЬНОМУ ЗАКОНОДАВСТВІ: ПОРІВНЯЛЬНИЙ АСПЕКТ

The article reveals the peculiarities of application of universal jurisdiction in national law. In particular, attention was paid to the mechanisms for consolidating universal jurisdiction in the legislation of the Romano-Germanic and Anglo-Saxon legal systems, in particular as regards its subject-matter, personal and territorial application. An inalienable element of this study is the analysis of the powers and practice of the judicial authorities in this matter. The main purpose of the article is a study of universal jurisdiction, based on classical cases of its consolidation in national law. Additionally, we provide the consideration of issues of practical application thereof in cases of war crimes. The conclusion is that national legislation has moved to a more narrow understanding of universal jurisdiction. Most often, in order to start a case, the complainant must be present before the national court. It is important that the offenses have a connection with public interests of the state iudex loci deprehensionis. The problem is also that the consolidation and application of universal jurisdiction at the national level has not been yet unified.

Current trends of the principle of transparency and the right of access to administrative documents

««Вестник Санкт-Петербургского университета. Право» — международный научно-теоретический рецензируемый журнал, публикующий материалы в следующих рубриках: Публичное и частное право: прикладные исследования Криминология Криминалистика Судебная экспертиза Исследования права с позиций социальных и гуманитарных (неюридических) наук Правовая жизнь: научно-практические заключения, комментарии и обзоры Сравнительное право Зарубежное право

El delito de injurias a los ejércitos: del Cu-Cut a la torna

The conflicts between the militia and the society, that were entailed by the Cu-Cut crisis in 1905 and provoked the so-called Law of Jurisdiction, were repeated again in 1978 with the military process in which the members of the catalan theatre group Els Joglars were prosecuted and convicted by a military criminal court for various obloquy offenses to the Armies, typified in the Code of Military Justice, and perpetrate during the representation of the play La Torna. In both episodes military courts were used to retaliate for conducts outside the strictly military sphere.However, the role of the constituent bodies of the Military Jurisdiction should be the result of the need to impart justice within the Armed Forces. Consecuently, forcing the application of the Military Criminal Law to civilian personnel, might suppose, as it has happened in those circumstances, a denaturation and oversizing as a polemological factor.

دور المساعدة القانونية المتبادلة بشأن جمع الأدلـة في قضايا استرداد الأموال المهربة خارج البلاد مروى يوسف يوسف البسيقى

Certain natural and legal persons who engage in corrupt practices such as embezzlement and bribery take advantage of particular countries that have strong banking secrecy provisions by lodging their assets in foreign banks of those countries. This presents a particular challenge for asset recovery processes, with procedures subject to legal difficulties which thwart attempts of repatriation.This issue demands further exploration,something that this research intends to undertake.This paper will analyze the role of mutual legal assistance in the context of the United Nations treaties and the Council of Europe treaties, which contain provisions on Mutual Legal Assistance for obtaining evidence and for the freezing and confiscation of assets. In addition, this paper will address the role of Mutual Legal Assistance in the transfer of evidence on the Swiss law. One of the key conclusions of this paper is that the process of recovering assets is complicated from a legal perspective because it applies the law of jurisdiction of the State in which the assets are deposited. We therefore recommend that developments and reforms in foreign laws be carefully examined, with particular attention being paid to provisions for Mutual legal Assistance, as well as follow-up efforts by the United Nations and the Council of Europe for adopting treaties and initiatives to support cooperation among States in criminal matters.

SOME FACETS OF INTEGRATION IN THE MODERNIZATION OFTHE CIVIL PROCESS

The rules of procedural law regulate the jurisdictional, i.e. law enforcement process, which is carried out in the form of law enforcement by specially authorized bodies (court, Prosecutor’s office, police, etc.) in cases of crimes and other offenses or in disagreements, i.e. when the subjects of legal relations cannot come to an agreement on their rights and obligations and apply to the court. Procedural law can be defined as a set (system) of legal norms, governing the procedure, the form of jurisdictional law enforcement activities of the competent state bodies on officials, aimed at the implementation of the norms of various branches of substantive law. Law enforcement in procedural law is carried out with the assistance of law enforcement agencies. The activities of the state and its bodies cover many areas of state and public life. One of the central places in this implementation of the tasks, law and order in law-abiding state with the protection of human rights and freedoms, protection of the rights and interests of the state and non-governmental organizations, labor collectives, combating crimes and other offenses. The development of law-abiding stateis one of the main aims of our society.

International Customary Law in the Jurisprudence of the ICTY and the ICTR

The object of this article is to describe how two ad hoc international criminal tribunals dealt with the issue of following and explaining norms of customary international law. In order to do that the representative decisions and judgments of international criminal courts are citied and examined. The first part is a description of the sources of law for criminal tribunals, with emphasis on the international custom. The second consists of the analysis of the international criminal courts’ approach to the two-element theory of customary international law. It is followed with an enquiry into the content of customary international law: concerning both jurisdiction and substance of customary international law. Keywords: International Customary Law, ICTR, ICTY, jurisprudence

‘We will all laugh at gilded butterflies’. The shadow of antitrust law on the collective negotiation of fair fees for self-employed workers

The development of a wide-reaching collective representation for (genuine) self-employment and the collective negotiation of fair fees for independent contractors might often be more dissuasive vis-à-vis scam self-employment than the threat of reclassification. However, case law in both civil and common law jurisdictions showcases how antitrust law can hamper the collective negotiation of workers’ minimum fees. The premise of such a view, which has its roots in the early stage of development of collective bargaining, is that the agreements setting the rates of pay for non-subordinate labour stand as restraints of trade. The author contends that this narrow interpretation of the scope of collective labour law - or rather this extensive view of the scope of antitrust law - is unacceptable. On the one hand, workers who personally carry out their activity cannot be treated as businesses operating on a free market, because they are - akin to the employees - individuals who lack the power to tangibly affect the terms and conditions of their work. For those persons, as the author recalls, collective bargaining have always stood for, even before the binary legal divide between employment and self-employment was drawn. On the other hand, it appears incongruous that a major challenge to the perimeters of collective labour law stems from a formalistic approach to a field of law (antitrust or competition law) which seeks to correct the market asymmetries in the interest of weaker parties, such as smaller businesses, communities and consumers. Ultimately, the author contends that a solution to overcome this legal hurdle cannot be found through a mere change in the interpretation of the existing US and EU competition and labour law rules, which have to be amended by the legislators in accordance with the current social needs.

Cyber-Terrorism under the Nigerian Law: A New Form of Threat or an Old Threat in a New Skin?

Cyber-terrorism is a new phenomenon that has found expression in the current legal literature on terrorism. The concept of terrorism itself is enigmatic as there is no commonly agreed definition. However, what constitutes acts of terrorism seems to be agreed upon by writer and legal philosophers and have been clearly proscribed under the laws of most jurisdictions. The difficulty entrenched in having a common definition for terrorism also has its impact on defining “cyber-terrorism” which also does not have an agreed definition. Cyber-terrorism takes on another dimension compared with the tradition terrorism due to the fact that it can only be carried out in the cyberspace needing no physical involvement in the location where the target is. The question that disturbs the mind is whether the cyber-terrorism poses another form of threat different from that of traditional terrorism which may require a separate law to address. It was realized that cyber-terrorism poses new threats that the extant legal provisions on terrorism in Nigeria cannot adequately handle due to the technicalities involved.

Criminal Law and the Constitution of Civil Order

Some who theorise criminal law in essentially political terms, as a species of ‘public law’, argue that we should therefore reject legal moralism. I argue that they are right to reject the kind of legal moralism espoused by theorists such as Michael Moore (partly because such moralists cannot give a plausible account of the ambit and jurisdiction of domestic criminal law), but that we can construct a plausible version of legal moralism within the framework of a public law conception. This is a ‘political’, or ‘public’ legal moralism, according to which criminal law is properly concerned with public wrongs that violate the polity’s civil order. I explain these ideas of civil order and public wrongs, and the way in which criminal law can both help to constitute, and to sustain, a particular kind of civil order; and I respond briefly to four objections to this account.

Protecting the Wrongdoer

This article examines the appropriateness of applying civil limitation laws to adult civil law claims in historical childhood abuse cases, focusing on issues of legal policy attending the use of such laws highlighted in the Australian case of Brisbane South Regional Health Authority v. Taylor. It is argued that civil limitation laws are inappropriate when applied to such cases and that ultimately such laws often give primacy to the interests of alleged wrongdoers and to the need to protect alleged wrongdoers from civil law redress in a context in which the ordinary justification for such laws is weak when weighed against the enormity of the injury caused by the abuses complained of and the acute difficulties victims often face in pursuing timely enforcement action in respect of the childhood rights allegedly violated. The article also contains a review of recent developments in the law in several jurisdictions.

The International Tribunal for the law of the sea and Other law of the sea Jurisdictions (2017)

The International Tribunal for the law of the sea and Other law of the sea Jurisdictions (2017)

Law reform in small states

Law reform can be a complex and challenging process in any jurisdiction. Small states face additional challenges, and some advantages, associated with a small population and land area. This article looks at how law reform agencies in small states adapt the law reform process, and the particular significance of comparative research in that context. It goes on to outline how, despite the challenges, small state and jurisdiction law reform agencies have made very considerable contributions to the law. Finally, the article assesses the particular utility of co-operation between law reform agencies, including through regional associations.

More Intel on the territorial limits of EU competition law

The recent increased focus of the European Commission on cartels formed and operated outside of the EU, which nonetheless harm competition in the internal market, has led to a corresponding increase in private damages actions being pursued in the English courts for losses occasioned by those cartels. Those private damages actions have tested both the jurisdictional reach of the English courts and the territorial scope of EU competition law. This article discusses the successful appeal by iiyama against the partial strike out of its private damages claims in the English High Court for losses occasioned by the CRT Glass and LCD cartels. The impact of the Court of Justice's decision in Intel, which was handed down between iiyama's damages actions being struck out and its successful appeal, is also discussed, together with the High Court's subsequent decision in Unlockd, which followed Intel and iiyama. Taken together, these cases provide significant increased clarity on the issues of jurisdiction and applicable law in private damages actions before the English courts.

Delivering (up) a copyright-based remedy for revenge porn

Despite recent progress in terms of the legal response to the problem of what is colloquially termed ‘revenge porn’, victims continue to face difficulties when seeking the removal of their private sexual images from third-party websites. While victims who are able to assert authorship and hence copyright ownership of these images can rely on the notice and takedown provisions found in the copyright laws of many jurisdictions to compel their removal, victims who are unable to make such claims are left without a similar remedy. However, current proposals for victims to be recognized as the joint authors of such images, or to be granted a new exclusive right to prevent their distribution, would disrupt fundamental copyright principles in a manner disproportionate to their underlying aims. This article puts forward an alternative solution, drawing inspiration from the recent settlement in Chambers v DCR: where a claimant has succeeded in obtaining injunctive relief against a defendant on the basis of the non-consensual distribution of the claimant’s private sexual images, a court may make a further order directing the defendant to assign any copyright they may have in the images to the claimant. This would function in a manner akin to the well-established remedy of delivery up.

Harmonization of Contract Law in Eastern and South-Eastern Asia: What Can Be Learned from the CISG and the ECL Experience?

This paper examines the pending initiative for harmonization of contract law in Eastern and South-Eastern Asian jurisdictions from the perspectives of the European Contract Law (ECL) and the Vienna Convention on International Sale of Goods (CISG). The idea behind the paper is that experiences, both positive and negative ones, gained from these two examples of harmonization of contract law may be very beneficial for the Asian initiative. Learning about the ECL and the CISG enables a better and more complete understanding of the contract law harmonization process. In particular, the analysis of these two examples show all the different problems, challenges and issues that harmonization of contract law brings which need always to be taken into consideration and the necessary conditions which need to be fulfilled in order to achieve a high level of harmonization in reality. Finally, this paper comes up with some of the suggestions that should be taken into consideration by the relevant stakeholders while discussing on how to proceed further with the harmonization of contract law in Asia.