Law Jurisdictions Research Articles

Post-Separation Contact and Domestic Violence: our 7-Point Plan for Safe[r] Contact for Children

The impact of living with domestic violence and abuse has been recognised in policy and law in many jurisdictions as reaching the threshold of ‘significant harm’, with children’s exposure included in definitions of abuse and neglect that require mandatory reporting, alongside an emerging recognition of coercive control as central to both the perpetration of domestic violence and abuse, and how children experience it. Far from separation providing an end to this exposure, over two decades of research on child contact arrangements highlights how it can provide legitimate opportunities for abuse to continue. While the empirical evidence demonstrates that using violence against a partner impacts on men’s ability to parent their children pre-separation, and a burgeoning knowledge base and improved professional acumen appreciates the risk to children and mothers of ongoing and escalating abuse post-separation, the international practice of the presumption of contact continues to trump this empirical evidence in the overwhelming majority of cases. This not only fails to consider the risk that domestic violence and abuse poses to child safety, but serves further to marginalise children’s safety. Motivated by our collective experience across the domains of research, policy and practice, this commentary poses some difficult questions, challenging a conversation about both the risks and benefits of contact in the context of a history of domestic violence and abuse. In no particular order, this paper outlines our seven-point plan, which, based on the evidence, we believe could make a significant difference to safe(r) post-separation contact for children.

Рецензия на монографию Ольги Анатольевны Терновой «Основные тенденции развития зарубежного корпоративного законодательства»

The review covers the main provisions and conclusions presented in Olga A. Ternovaya’s monograph “The Key Tendencies of the Foreign Corporate Legislation Development”. As a result of the research the author of the monograph reveals such current trends of modern corporate law development as digitalization, socialization, harmonization of norms on counteraction to erosion of taxable base and norms on corporate governance, democratization of corporate regulation, perfection of regulation of transborder bankruptcies. Olga A. Ternovaya’s work undoubtedly contributes to the development of domestic scholarship on corporate law of foreign jurisdictions.

Of Markets and Subsidies: Counter-intuitive Trends for Clean Energy Policy in the European Union and the United States

AbstractThe United States (US) is frequently portrayed as a nation with a deep distrust of big government and a strong commitment to markets and competition. In contrast, the prevailing image of the European Union (EU) is that of a highly bureaucratized polity favouring interventionist economic governance over free market capitalism. In the context of clean energy, however, these roles appear to be somewhat reversed. A top-level survey of the US clean energy policy landscape reveals a surprisingly pervasive reliance on government subsidies with few, if any, competitive elements. EU clean energy policy, meanwhile, reflects an unexpected commitment to market-based instruments and competition. This article suggests that these counter-intuitive policy trends can be explained by critical differences in the black-letter law of both jurisdictions and its enforcement in the courts, among other factors. Unlike their American counterparts, EU judges prioritize the timely transition to a low-carbon energy economy over unrestricted competition among Member States. As the EU pushes for greaterintrastate competition in clean energy policy, the US focuses instead on defending the Founding Fathers’ ideal of unfetteredinterstate competition.

General Anti-Avoidance Rules and Tax Treaties: A South African perspective

The domestic laws of many countries contain statutory general anti-avoidance rules, or ‘GAAR’. As tax avoidance schemes have proliferated, especially in a cross-border context, the relative importance of a country’s GAAR has increased. A question that arises is whether a country’s GAAR can be invoked to deny the benefits granted by a tax treaty. The question is complicated by the fact that, as international agreements, tax treaties are subject to public international law, while at the same time forming part of the domestic laws of the states party to the treaty. While the Organisation for Economic Co-operation and Development has attempted to provide clarity in this regard, the answer remains dependent on the manner in which tax treaties interact with the domestic laws of the specific jurisdictions in question. In terms of South African law, the provisions of a tax treaty rank equally with those of domestic law. As a result, any conflict must be resolved by the application of the principles of statutory interpretation and superseding of legislation. Despite this fact, the South African courts tend to favour an approach whereby the provisions of domestic law and those of a treaty are reconciled, rather than having one prevail over the other. The author argues that the GAAR may be applied in a treaty context, provided that the purpose of a treaty and the GAAR can be reconciled. Ultimately, the author is of the view that certainty in this regard can only be achieved through some form of legislative intervention.

МЕТОДОЛОГІЧНІ ОСНОВИ ВІТЧИЗНЯНОЇ КРИМІНАЛЬНО-ПРАВОВОЇ НАУКИ: СТАНОВЛЕННЯ ПОРІВНЯЛЬНОГО (КОМПАРАТИВНОГО) МЕТОДУ В СЕРЕДИНІ XIX – НА ПОЧАТКУ XX СТОЛІТТЯ

The paper raises the question of a current role of methodology domestic criminal law and criminal law research. Methodological problems of criminal law are analyses, in particular the process of formation of the comparative (comparative) method in the works of criminologists of the middle of the XIX – beginning of the XX century. It is emphasizes that the comparative method of cognition contributes to the development of national domestic law, in particular, criminal law, as the above method is potentially the powerful driving force for its transformation. It is the most effective way to establish the patterns of development of law, by comparing legal phenomena at different times in different countries. It is possible to predict qualitative changes in foreign and domestic law in the future by having established a certain pattern of such development, it is possible to predict qualitative changes in foreign and domestic law in the future. Comparative analysis in the field of criminal law has many useful manifestations. For example, for a domestic legislator, it can be a source of important information about the legislative regulation of similar criminal relations in other countries. Such an analysis can be useful to the judiciary by clearly demonstrating the advantages or disadvantages of alternative ways of interpreting criminal law in foreign jurisdictions. Ukrainian legal doctrine, in turn, would only benefit from new theoretical knowledge and scientific approaches to solving modern problems of criminal liability. Not to mention the representatives of higher legal education, who with the help of a comparative (comparative) method will be able to teach future Ukrainian law enforcement and law enforcement officers to think critically and comprehensively, significantly expanding their professional horizons. The paper focuses on the fact that a methodology of the modern science of criminal law is a complex and multi-faceted institution that covers: a) analysis of a criminal law language; b) the structure and operative system of research methods applied in the criminal law; c) a conceptual frame of criminal law; d) laws of appearance, functioning and changes of scientific legal theories and doctrines in criminal law; e) problems of a structure of scientific knowledge in criminal law and scientific theories (constructions). The authors emphasizes that it is in the process of comparative (comparative) cognition that researchers have an ideas and suggestions for improving the functioning of domestic and foreign criminal legislation.

International adoption: lex adoptio and the plurality of connecting factors

This article analyzes the substantive law and conflict of laws law of such countries as Austria, Venezuela, Germany, Dominican Republic, Iceland, Spain, Canada (Quebec), Norway, Poland, Portugal, Switzerland, as well as bilateral agreements on legal aid, case law of the European Court of Human Rights, which demonstrates the presence general principles of law, as well as the principle of protecting the weaker party to the legal relationship, the principle of observance of best interests of a child established by the universal multilateral international agreements: Convention on Human Rights of 1950, Convention on the Rights of the Child of 1989, Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption. The author examines the relevant issues of the conflict of laws regarding the manifestation of the conflict of jurisdictions, plurality of connecting factors in regulation of a set of private law relations associated with international adoption. The result of the conducted research consists in formulation of a special statute of adoption (lex adoptio), analysis of its legal nature and scope. In the context of examination of the procedure for establishing international adoption, the author identifies the problem of dépeçage (different issues within a single case are governed by the laws of different jurisdictions). A classification is provided to the combinations of plurality of connecting factors established by the legislation of foreign countries, as well as multilateral international agreement – the Inter-American Convention on Conflict of Laws Concerning the Adoption of Minors of 1984).

A Trans-Atlantic Doctrinal Orientation Made Concrete: Ohio’s First 'Modern' Business Corporation Act (1927)

A Trans-Atlantic Doctrinal Orientation Made Concrete: Ohio’s First 'Modern' Business Corporation Act (1927)

The law enabling sanctioned persons to move litigations to Russia: background and reasons

On 8th June 2020 Vladimir Putin signed into law a new bill amending Russian Commercial Code (RCC) introducing provisions that enable sanctioned persons to sue in Russian commercial courts their foreign counterparts irrespective of jurisdiction clause within the contract signed or international treaty. The main sponsor has given his name to the new Law, which is already known as Lugovoy Law. The sense of the Parliament was that to provide Russian sanctioned persons and their affiliates (both domestic and foreign) with extra support vis-à-vis ongoing and forthcoming litigations abroad. As of now, the RCC is supplemented by sections 248.1 and 248.2 and the commercial courts shall have exclusive jurisdiction over disputes involving persons that are subject to restrictive measures. The Law neither list countries and jurisdictions that shall impose sanctions on the Russian plaintiffs, nor specify type of restrictive measures. For instance, the Russian company sanctioned solely by Ukraine may prevent LCIA arbitration or High Court proceedings in England at the suit of its British opponent. In doing so, the Russian sanctioned Plaintiff is required adducing evidence to show deprivation from right to an effective remedy and to a fair trial abroad. Pursuant to the Lugovoy Law, the Plaintiff could be either an individual or a legal entity including foreign ones and be subject of restrictive measures imposed by any foreign country, union of states or by a body of certain interstate community. The Plaintiff’s home commercial court shall have inherent jurisdiction to entertain cases arising out of the new Lugovoy Law. Meanwhile section 248.2 of RCC enables sanctioned persons to seek injunctive relief precluding foreign opponents either commencing or continuing court proceedings in foreign fora. It is a kind of ex parte anti-suit injunction previously unknown to the Russian legal order. The sanctioned person may invoke 248.2 relief once mailed by opponent’s pre-trial letter. In support of the anti-suit injunction the Lugovoy Law allows sanctioned persons asking the court to order for security for costs. However, the amount sought shall not exceed the sum at stake in the main proceedings. Both orders made under the Lugovoy Law may be challenged on appeal at the Circuit Commercial court within one month. At the outcome, the protectionist logic of the legislature made foreign non-residents extraterritorially amenable to the jurisdiction of Russian commercial courts irrespective their personal law. This might provoke competition between jurisdictions and the emergence of two judicial acts on a dispute between the same persons on the same subject and grounds. If the major actors of the Russian economy decide to recourse to the provisions of the new law in disputes that have nothing to do with sanctions that may entail international tensions. The real purpose of the Lugovoy law is to create an extra tool to protect sanctioned persons and their interests. The opponents of those persons designated under some sanctions program shall not be able to recognise and enforce on the territory of Russia a judgment or arbitral award that in some extent appears to disadvantage Russian sanctioned persons. The author was followed by the objective to discover background and reasons behind the Lugovoy Law, as well as to attempt establishing its beneficiaries. Examining court proceedings versus Russian sanctioned persons abroad that have been commenced or disposed of within a month prior Andrei Lugovoy introduced his bill, it were found situations the Lugovoy Law would like to prevent and persons it tries to protect beforehand. In addition to this, the research focused on cases in Russian commercial courts wherein the Plaintiffs were trying to persuade the Commercial courts to apply the principles of Lugovoy bill before it has become law.

State Responsibility for International Bail-Jumping

Over the last decade there has been a spate of incidents in Canada and the United States involving Saudi Arabian nationals who, while out on bail for predominantly sexual crimes, were able to abscond from the country despite having surrendered their passports. Investigation has revealed evidence supporting a reasonable inference that the government of Saudi Arabia has, in fact, assisted its nationals to escape on these occasions. This article makes the case that this kind of conduct amounts not just to unfriendly acts, but infringements upon the territorial sovereignty of both states and serious breaches of the international law of jurisdiction. It surveys the possible remedies available to both injured states, and in light of the fact that neither state has sought any such remedy, examines possible remedial routes for the victims of the Saudi nationals’ crimes. It remarks upon the utter failure of either Canada or the U.S. to address these acts, concluding that such wilful neglect both corrodes sovereignty and undermines the will to address sexual crimes.

Lord Hardwicke’s Marriage Act – „pierwsza” angielska ustawa o małżeństwie

Przedmiotem artykułu jest w pierwszej kolejności historycznoprawna analiza zjawiska małżeństw potajemnych w nowożytnej Anglii, gdzie instytucja małżeństwa nadal w części podlegała prawu i jurysdykcji kanonicznej. Następnie analiza ta dotyczy uchwalonej przez Parlament w 1753 r. ustawy o lepszym zapobieganiu małżeństwom potajemnym (An act for the better preventing of clandestine marriages). Ustawa ta, uchwalona z inicjatywy ówczesnego Kanclerza Lorda Hardwicke’a (stąd potoczna nazwa Lord Hardwicke’s Marriage Act), miała na celu eliminację z praktyki społecznej małżeństw potajemnych, poprzez wprowadzenie urzędowej formy zawarcia małżeństwa pod rygorem nieważności (przeszkoda zrywająca). Kluczowymi ogniwami nowej regulacji był obowiązek zawarcia ślubu w kościele parafialnym oraz uprzednie uzyskanie przez małoletnich zgody rodziców lub opiekunów na małżeństwo. Rozwiązania przyjęte w Hardwicke’s Act oraz sam fakt ich wprowadzenia ustawą Parlamentu zapoczątkowały proces przejmowania jurysdykcji małżeńskiej Kościoła Anglii przez państwo. Zjawisko to już ówcześnie było przedmiotem debaty, a obecnie pozostaje istotnym elementem badań nad ustawą. Wnioski z przedstawionej analizy potwierdzają szczególne znaczenie Hardwicke’s Act dla dalszej ewolucji instytucji małżeństwa w Anglii, co uzasadnia przyznanie jej miana „pierwszej” angielskiej ustawy o małżeństwie.

Compatibility between the OECD’s Hard-to-Value Intangibles Methodology and the Arm’s Length Standard: What Is the Way Forward?

This article studies the compatibility between the hard-to-value intangibles (HTVIs) methodology adopted by the OECD Transfer Pricing Guidelines (OECD TPG) 2017 and the arm’s length standard (ALS). This new methodology provides tax administrations with a useful tool for dealing with the information asymmetry problem in relation to taxpayers when assessing transactions involving intangibles for which the valuation is highly uncertain. However, certain features of this new approach may contradict the ALS as enshrined in article 9(1) of the OECD Model and, consequently, as internalized at a domestic level within the income tax law and tax treaty network of many jurisdictions around the world. In this context, this article provides a comprehensive analysis of the OECD’s HTVIs methodology, from its conception in the United States to its final incorporation within the TPG, the tensions with the ALS that may lead to normative conflicts in different jurisdictions, and, lastly, the possible solutions that could amend this discrepancy.

Anti-Discrimination Law in Civil Law Jurisdictions

Anti-Discrimination Law in Civil Law Jurisdictions

Rules, Standards, and General Jurisdiction

Recent Supreme Court decisions have put the constitutional law of personal jurisdiction in flux. The restructuring that the Court has worked on “general jurisdiction”—that, is personal jurisdiction as to a defendant where the defendant has extensive ties to the forum state but those ties do not give rise to the plaintiff’s cause of action—seems to have been motivated at least in part by a desire by the Court to put in place “[s]imple . . . rules” governing jurisdictional questions. But the Court’s assertion that its approach broke new ground by ensconcing a rule-like test along the boundary of personal jurisdiction is erroneous in a few ways. First, while examination of the preexisting landscape reveals some disagreement among lower courts, the fact is that the presence (or absence) of general jurisdiction was predictable across a broad swath of cases. And, while the Court suggested that an absence of general jurisdiction cases from its docket demonstrated a more general lack of reliance on general jurisdiction, a novel empirical examination of the Supreme Court’s general jurisdiction certiorari docket indicates that the better interpretation of the absence of general jurisdiction from the Court’s docket is that overall lower courts were applying the test for general jurisdiction with relative ease and without much conflict. Second, the Court’s new test for general jurisdiction introduces some less, predictable, standard-like elements that were not part of the old test: The new test makes general jurisdiction over a corporate defendant proper only in essence in the corporation’s place of incorporation and principal place of business, and the determination of a corporation’s principal place of business may require comparisons across states and countries that are not always easy to apply or predict. Third, the Court’s new test for general jurisdiction is narrower than the old one, and the narrowing of general jurisdiction will push plaintiffs (who may wish to sue in their home jurisdiction or whether they were injured, or who may wish to avoid piecemeal litigation) toward the vagaries of specific jurisdiction. Moreover, the Court’s new general jurisdiction jurisprudence has already had the ripple effect of discrediting more predictable forms of specific jurisdiction. In short, under the new regime—contrary to the Court’s stated goal—more litigants are likely to face standards as they debate the propriety of personal jurisdiction. The decision in Ford Motor Co. v. Montana Eighth Judicial District Court—a case the Court has added to its docket this Term—may wind up rejecting yet another existing predictable form of specific jurisdiction. Alternative arguments—that the Court did not clearly express—are in any event insufficient to justify a narrower rule for general jurisdiction. The movement toward the narrow regime seems likely motivated by concerns of comity in the context of foreign corporations, but comity should be self-executing, leaving one to question why it should be part of the constitutional analysis. In the context of domestic corporations, the Court’s shift from a broad test to a narrow rule may be motivated, ironically, by the presence of a broad standard governing another area of Court: the constitutional limit on state choice-of-law rules. But this seems like the choice-of-law tail wagging the personal jurisdiction dog. If the Court truly wants to increase the extent to which rules govern personal jurisdiction, it should embrace a broader rule for general jurisdiction. It should also work to reduce the fractures that have characterized specific jurisdiction decisions, and consider generating a sizeable core where the presence (or absence) of personal jurisdiction is relatively predictable.

The Role of Party Autonomy in Choosing Procedural Law in Arbitration: the rules of the WIPO Arbitration and Mediation Centre

While the role of parties’ autonomy is of minimal importance when discussing procedures in cases including foreign element presented before the courts, it plays an important role in the choice of applicable law in arbitration procedures. The reason for this is that an arbitrator is not subject to law of jurisdiction, in the same way as a national judge. In response to the development of protection of intellectual property, the World Intellectual Property Organization “WIPO” organization has established an arbitration and Mediation centre, described as the first institutional international center specialized in settling intellectual property disputes, and has given the parties freedom to choose the law applicable to procedure. The study concludes that it is essential to introduce amendments to the WIPO arbitration rules to guarantee legal clarity and prevent confusion, such as imposing characterization to the law of the selected seat of arbitration, the need for explicit choice on the law governing the arbitration procedures, and clarification about what is meant by the law of the seat of arbitration in the absence of choice.

The Concept and Special Features of Corporate Regulatory Act

Introduction. Rapid development of corporate relations in Russia results in necessity for legislative recognition and theoretical conceptualization of the most significant management devices in this sphere. For example, corporate regulatory act is a simple and convenient tool for internal regulation of corporate operations. Besides, Russian legislation gives no definition of corporate regulatory act. This fact causes difficulties for entrepreneurs to perceive this source of law. The article reveals the essence of corporate regulatory act and discloses the content of this legal phenomenon. Materials and methods . In the course of the research the authors used the following general scientific and special juridical methods: analysis, synthesis, formal logical method, comparative legal method, structural and functional method. The special feature of the research is the concept of series method used to trace the development of the definition of corporate regulatory act from the general to the special without losing the generic and specific aspects of this legal phenomenon. The authors used for research such materials as corporate regulatory acts of companies that operate under the UK's and the USA's common law and Japan's jurisdictions as well as the legislative acts governing adoption and execution of such acts. Results of the research . The main result consists in revealing the essence of corporate regulatory act that is embodied in the definition of this concept. The authors also reveal special features of this legal phenomenon in the legal systems of Russia, Japan and some other common law legal systems. The authors substantiate that corporate regulatory act is an ultimately flexible regulator and this fact allows it to individualize rules for every company. Besides, the totality of such acts creates an holistic system of regulation. These features determine advantages of corporate regulatory act over other sources of corporate law. Discussion and conclusions . Proceeding from good development prospects for the internal corporate regulation within Russian companies, corporate regulatory act as a basic element of this type of regulation needs further theoretic development and legislative recognition.

The Right to Leave Any Country and the Interplay between Jurisdiction and Proportionality in Human Rights Law

Abstract This article shows the importance in human rights law of the right to leave any country, in light of increasing efforts by European countries of destination to prevent departures and to contain movement by enlisting countries of origin and transit to act as gatekeepers. The article highlights the autonomous nature of the right and challenges in triggering its application. It assesses whether this right is opposable to destination countries, and finds two key challenges – first, meeting the requisite jurisdictional threshold, and secondly, as this is a qualified right, applying the proportionality test. The article examines the interplay between these difficulties. It argues that the jurisdictional threshold expresses a political and legal relationship between the duty bearer (the State) and the right holders (the individuals). This relationship enables us to operationalize the proportionality test – namely whether measures limiting rights are in accordance with the law and are proportionate.

The International Tribunal for the Law of the Sea and other Law of the Sea Jurisdictions (2019)

The International Tribunal for the Law of the Sea and other Law of the Sea Jurisdictions (2019)

Legal Transplants, Law Books, and Anglo-American Corporate Fiduciary Duties

This article explores legal transplants and divergences in Anglo-American corporate fiduciary law. The internal management rule in English law acts to restrict judicial interference in corporate governance disputes. It is conceptually similar to the business judgment rule but the two remain distinct. This article explains why Anglo-American corporate law developed differently, despite its shared roots. It pinpoints the origins of the internal management rule to Lord Lindley’s work, which was written in the late nineteenth century. Lord Lindley was central to the development of corporate law in England and other common law jurisdictions within the British Empire but his jurisprudence was not influential in the United States. By this stage in the nineteenth century, the body of American scholarship was sufficiently well developed. Lindley’s text, despite its failure to stimulate American doctrinal development, was well read in the United States. Even so, judges and corporate lawyers in the United States took their inspiration from English law at the time of the founders.

Informed consent, duty of disclosure and chiropractic: where are we?

BackgroundThe COVID-19 pandemic has seen the emergence of unsubstantiated claims by vertebral subluxation-based chiropractors that spinal manipulative therapy has a role to play in prevention by enhancing the body’s immune function. We contend that these claims are unprofessional and demonstrate a disturbing lack of insight into the doctrine of informed consent. As such it is timely to review how informed consent has evolved and continues to do so and also to discuss the attendant implications for contemporary health practitioner practice.We review the origins of informed consent and trace the duty of disclosure and materiality through landmark medical consent cases in four common law (case law) jurisdictions. The duty of disclosure has evolved from a patriarchal exercise to one in which patient autonomy in clinical decision making is paramount. Passing time has seen the duty of disclosure evolve to include non-medical aspects that may influence the delivery of care. We argue that a patient cannot provide valid informed consent for the removal of vertebral subluxation. Further, vertebral subluxation care cannot meet code of conduct standards because it lacks an evidence base and is practitioner-centered.The uptake of the expanded duty of disclosure has been slow and incomplete by practitioners and regulators. The expanded duty of disclosure has implications, both educative and punitive for regulators, chiropractic educators and professional associations. We discuss how practitioners and regulators can be informed by other sources such as consumer law. For regulators, reviewing and updating informed consent requirements is required. For practitioners it may necessitate disclosure of health status, conflict of interest when recommending “inhouse” products, recency of training after attending continuing professional development, practice patterns, personal interests and disciplinary findings.ConclusionUltimately such matters are informed by the deliberations of the courts. It is our opinion that the duty of a mature profession to critically self-evaluate and respond in the best interests of the patient before these matters arrive in court.

Complex societies and the growth of the law

While many informal factors influence how people interact, modern societies rely upon law as a primary mechanism to formally control human behaviour. How legal rules impact societal development depends on the interplay between two types of actors: the people who create the rules and the people to which the rules potentially apply. We hypothesise that an increasingly diverse and interconnected society might create increasingly diverse and interconnected rules, and assert that legal networks provide a useful lens through which to observe the interaction between law and society. To evaluate these propositions, we present a novel and generalizable model of statutory materials as multidimensional, time-evolving document networks. Applying this model to the federal legislation of the United States and Germany, we find impressive expansion in the size and complexity of laws over the past two and a half decades. We investigate the sources of this development using methods from network science and natural language processing. To allow for cross-country comparisons over time, based on the explicit cross-references between legal rules, we algorithmically reorganise the legislative materials of the United States and Germany into cluster families that reflect legal topics. This reorganisation reveals that the main driver behind the growth of the law in both jurisdictions is the expansion of the welfare state, backed by an expansion of the tax state. Hence, our findings highlight the power of document network analysis for understanding the evolution of law and its relationship with society.