National Courts Research Articles

The Hague Academy as a Space of Encounter: How Scelle’s 1933 Teachings on National Courts Landed in the Netherlands

The Hague Academy as a Space of Encounter: How Scelle’s 1933 Teachings on National Courts Landed in the Netherlands

EU Environmental Principles and Scientific Uncertainty before National Courts: The Case of the Habitats Directive Edited by Mariolina Eliantonio, Emma Lees and Tiina Paloniitty (Oxford: Hart Publishing, 2023)

EU Environmental Principles and Scientific Uncertainty before National Courts: The Case of the Habitats Directive Edited by Mariolina Eliantonio, Emma Lees and Tiina Paloniitty (Oxford: Hart Publishing, 2023)

Aspects of the creation and judicial activity of the Specialized Chambers of Kosovo and the Role of the Republic of Albania

Abstract Since the end of the Kosovo conflict in 1999, various international and national courts have investigated serious war crimes and crimes against humanity in the region. In 2015, the Kosovo Specialized Chambers (SCK) and the Specialized Prosecutor’s Office (SPO) were established to investigate specific allegations of war crimes, particularly those linked to members of the Kosovo Liberation Army (KLA) during and after the conflict. Although the Court is legally part of Kosovo’s system, it faces strong opposition within the latter, due to its location outside the country and its exclusion of Kosovo nationals from its staff. The trials of key KLA figures, many of whom have held major political roles in the country, have sparked significant debate both in Kosovo and internationally. This manuscript will examine the legal foundation, structure, and scope of the SCK and SPO, and how they compare to other international courts. It will also review the indictments and ongoing trials of former KLA members. Additionally, the article will explore Albania’s diplomatic efforts, particularly its campaign to challenge allegations of organ trafficking mentioned in a 2011 Council of Europe report, which played a key role in the creation of the Court. By looking at the Court’s activities, the article will offer insights into its impact on Kosovo’s international standing.

Upstream Review of intra-EU ICSID Arbitrations and Its Consequences: A Commentary on the Order of the Bundesgerichtshof (German Federal Court of Justice) in I ZB 43/22 MAINSTREAM Renewable Power et al. v. Germany

EU Member States may have recourse to ‘upstream’ national judicial protection under the German Civil Procedure Code to declare inadmissible and thereby preclude intra-EU investment arbitration proceedings brought under the auspices of the International Centre for Settlement of Investment Disputes (ICSID) Convention. That remarkable conclusion by the Bundesgerichtshof (German Federal Court of Justice) constitutes the first attempt of a higher court of an EU Member State to render compatible the seemingly contradictory obligations on national courts arising from EU law and the ICSID Convention. However, even more important than the court’s conformity assessment are the inherent consequences of its conclusion: the incompatibility of the ICSID Convention with EU law and the obligation, on all EU Member States and their institutions, to disapply that convention in intra-EU investment arbitration matters and ultimately to denounce it collectively.

The concept of ‘due cause’ and its role in safeguarding fundamental rights under EU trade mark law: how should the CJEU rule in IKEA, C-298/23?

Abstract While trade mark rights themselves constitute fundamental rights within the right to property, they may also collide with the fundamental rights of third parties. The latter is particularly evident where third parties try to justify their unauthorized use of a trade mark on the basis of their own fundamental rights. The collision between the fundamental rights–protected interests of the trade mark proprietor and the third parties become all the more apparent when it comes to the protection of trade marks with a reputation. Trade marks with a reputation are particularly exposed to use by third parties due to their high level of appreciation and recognition among the public and therefore deserve a special protection. However, this special protection must not get out of hand and must be restricted wherever the fundamental rights interests of third parties outweigh those of the trade mark proprietor. As a result, a balance must be struck between the colliding fundamental rights interests. All this raises the question where such a balancing of interests could take place in the context of the European Union (EU) Trade Mark Regulation 2017/1001 (EUTMR) and Directive on the European Union Trade Mark (EUTMD). And once the ‘where’ has been resolved, a question still remains as to how an appropriate balance can be achieved or rather what criteria need to be taken into account when balancing these interests. To answer these questions, existing case law of the Court of Justice of the European Union (CJEU) provides only limited to no substantive guidance. It is therefore not surprising that a Belgian national court requested the CJEU to clarify precisely these questions at EU level in 2023 (IKEA, C-298/23). In this case, the main role is played by the negative condition ‘without due cause’, which arises from the EUTMR and EUTMD provisions protecting trade marks with a reputation and which stipulates that the trade mark proprietor can only enforce the special protection if the third party is unable to establish that the use of the trade mark takes place with ‘due cause’. It is therefore the task of the CJEU to clarify whether the required balance of fundamental rights interests can be achieved within the framework of the undefined legal concept of ‘due cause’ and, if so, to specify the criteria by which such a balance can be achieved. This article sets out and discusses how the CJEU should solve this task and concludes that the concept of ‘due cause’ must be interpreted broadly in order to provide a flexible counterweight to the far-reaching protection of trade marks with a reputation. Hence, the concept of ‘due cause’ can be understood as a safeguarding mechanism for the fundamental rights of third parties, whereby various criteria must be taken into account in order to achieve a fair balance with the fundamental rights–protected interests of the trade mark proprietor.

Obtaining evidence by the court at the request of international commercial arbitration

The article is dedicated to the study of the legal aspects of the procedure for obtaining evidence at the request of the International Commercial Arbitration Court through national courts. The procedure for submitting evidence in international commercial arbitration depends on the rules agreed upon by the parties in the arbitration agreement, as well as the applicable procedural norms of the arbitration institution (e.g., UNCITRAL Rules, ICC, LCIA, etc.). However, there are general principles and stages that are characteristic of most arbitration processes. The participation of national courts in relationships arising in connection with arbitration proceedings is implemented through the exercise of certain functions by the judiciary within the established scope of interaction. It has been determined that the primary goal pursued by the state, by granting national courts the authority to perform functions of assistance and control, is an interest in the implementation of the international commercial arbitration jurisdictional function. These circumstances ensure the effectiveness of arbitration proceedings and their attractiveness for the disputing parties. The general rules for submitting evidence and the powers granted to international commercial arbitration are highlighted, which include the authority to determine the admissibility, relevance, materiality, and significance of any evidence. It is concluded that the general rule is that the international arbitration court has the right to require the parties to submit evidence, as well as the right to request evidence from third parties, which the arbitration tribunal deems necessary for the resolution of the dispute. It is noted that an effective way to obtain the requested evidence is provided by Article 27 of the Law of Ukraine «On International Commercial Arbitration,» which allows the arbitration court to apply to the national court for assistance in obtaining evidence by way of a request for evidence. It is argued that the court’s assistance in obtaining evidence within the context of Article 27 of the Law of Ukraine «On International Commercial Arbitration» should only be considered in the possibility of requesting evidence by the court in accordance with Article 84 of the Civil Procedure Code of Ukraine. The request for evidence, as part of the institution of evidence preservation, in accordance with part 7 of Article 116 of the Civil Procedure Code, is not a form of court assistance to international commercial arbitration, which involves not only obtaining evidence relevant to the subject matter of the case and important for its resolution, but also primarily a way to prevent its potential loss in the future.

Admissibility of Requests for a Preliminary Ruling in the Case Law of the CJEU on Judicial Independence

In recent years, the CJEU has experienced a significant increase in requests for preliminary rulings on the interpretation of Article 19(1) TEU in the area of judicial independence. However, not all requests concerning this provision have been deemed admissible by the CJEU. This article examines the underlying principles of the preliminary ruling procedure under Article 267 TFEU that guide the CJEU in accepting or rejecting requests from national courts in this critically important area of EU law. It focuses on the concept of ‘court or tribunal’ within the meaning of Article 267 TFEU and the ‘necessity’ of the Court’s ruling.

Case law of the European court of human rights on compensation for non-pecuniary damage: Certain issues

Compensation is considered a means of restoring the violated rights. Ukrainian legislation directly provides for the possibility of compensation for non-pecuniary damage, however, a number of problems arise when considering cases on this issue in national courts. Firstly, there is no legally enshrined definition of this concept in Ukraine. Secondly, there is no single methodology or model for assessing moral damage, no formula for calculation is established at the legislative level, due to which judges assign different amounts of compensation for harm caused under the same or similar circumstances. Besides, there are no clear criteria for determining the amount of damage caused, which makes it almost impossible to unambiguously calculate, for example, the extent of the mental pain or the infringement on dignity and honor in property equivalent, that is, it is in fact a conditional compensation. Reference to the case law of the ECHR on this matter may contribute to solving these problems, because its decisions are referred to by national courts. The ECHR has not developed a universal formula for calculating the amount of non-pecuniary damage, but there are certain criteria for its assessment: the nature of the offense and violated right; payments accrued based on the results of consideration of previous cases; victim’s personality; the respondent State; collective statements or mass offenses; other circumstances of the case.

Correction: The binding nature of posting PDA1 issued under EU social security Coordination Regulations and the possible role of national courts

Correction: The binding nature of posting PDA1 issued under EU social security Coordination Regulations and the possible role of national courts

La casación penal en Ecuador: su procedencia por falta de aplicación de la ley

The filing of the extraordinary appeal for criminal cassation, in Ecuador, based on the violation of the law in a sentence, means that the appellant must take into account any of the three components established in the law. However, when focusing on the ‘expressly contravening’ component, a diaspora of criteria arises to conceptualize or define it, coming from the legislator, doctrine, jurisprudence and comparative law, which makes it very difficult to decide when, in fact, the user of justice, is before the stated component. Then, with the application of the qualitative approach and following the theoretical legal, historical-logical, exegetical-analytical and comparative legal methods, the general objective is formulated: ‘Critically review the bases that lead to the legal formulation of article 656 of the Code Comprehensive Criminal Organic Law on the origin of the Cassation Appeal, specifically, regarding the first component of the violation of the law as “expressly contravening its text”, confronted with the principle of exhaustiveness and the jurisprudential line drawn by the National Court of Justice of the Ecuador, which, by stating that “… contravening the law is the same as its lack of application”. Arriving at the conclusion that, strictly speaking, the “express contravention” component is poorly formulated.

Gender Affirmative Actions and Greater Participation Female in Politics: Overcoming “Inaptitudes” With Amartya Sen

Objective: The objective of this study is to investigate affirmative actions within the framework of John Rawls' and Amartya Sen's theories, with the aim of analyzing how these theories have influenced the strengthening of the idea of human dignity in contemporary times and the promotion of female political participation. Theoretical Framework: This section presents the main concepts and theories that underpin the research. The focus is on John Rawls' theories of justice and Amartya Sen's capabilities approach, providing a solid foundation for understanding the context of the investigation. Method: The methodology adopted for this research comprises a jurisprudential review and an analysis grounded in a dialectical perspective. Data collection was conducted through the analysis of judicial cases and legal documents, particularly within the Brazilian context of fictitious candidacies and the demand for the implementation of gender equality policies. Results and Discussion: The results revealed the necessity for decisions by national courts in cases of gender quota fraud to also be based on a gender perspective. In the discussion section, these results are contextualized in light of the theoretical framework, highlighting the implications and relationships identified. Possible discrepancies and limitations of the study are also considered in this section. Research Implications: The practical and theoretical implications of this research are discussed, providing insights on how the results can be applied or influence practices in the field of gender equality in politics. These implications may encompass the formulation of public policies and judicial actions in cases of electoral fraud. Originality/Value: This study contributes to the literature by proposing the maintenance of legitimately elected female candidates who did not participate in electoral fraud, and, from this number, the recalculation of the legal quota proportionality, as a means of strengthening the fundamental right to gender equality. The relevance and value of this research are evidenced by the potential application of its results in improving the effectiveness of affirmative actions in the political context.

THE OBSTACLES TO THE RIGHT TO A FAIR TRIAL UNDER THE INTERNATIONAL LAW: A CASE STUDY OF AL-ANFAL AND SREBRENICA GENOCIDE TRIALS

Background: The right to a fair trial is a critical part of national and international human rights frameworks. To protect this right, the rule of law should be implemented. Currently, the approach to trying individuals accused of grave international crimes, including genocide, is different, which gives an impression of inequality. For instance, the person accused of the al- Anfal genocide was tried by a national court and sentenced to the death penalty, whereas the person accused of the Srebrenica genocide was sentenced to life imprisonment by an international tribunal. Not to mention the lack of respect for the defendants’ rights during the al-Anfal genocide’s trial, including the principle of due process and the right to a fair trial. The main reason for the differing decisions in these two identical cases involving genocide arises from their trials in different courts and under different legal frameworks. This paper addresses the significance of these challenges for equality under international law and emphasises the difficulties in securing fair trials by examining these examples. Methods: This article analyses the application of the right to a fair trial for international criminals by using doctrinal methods. Specifically, it adopts a qualitative approach to examine relevant international statutes. To illustrate, the research chose to analyse and compare two case studies: the trial of Ali al-Majid, the leader of the al-Anfal genocide, and Ratko Mladic, the leader of the Srebrenica genocide. This comparison focuses on aspects such as judicial independence and overall fairness in the trials of war criminals. It involves desk-based research and data that are collected through the analysis of relevant literature from primary sources, such as international law instruments and secondary sources, including books and academic articles, about the inconsistency of fair trial standards in different judicial contexts. Results and conclusions: Different approaches in trials for similar crimes threaten global justice and the protection of individual rights and freedoms. One practical way to address this issue is to bring those accused of grave international crimes, including genocide, to appear before the International Criminal Court (ICC), providing fair trials and punishments. However, this article demonstrates that the doctrine of state sovereignty may pose challenges to creating a uniform framework for the prosecution of war criminals. Additional challenges arise with the existence of different legal and political systems across the world. The article argues that to ensure a fair trial and maintain international peace and security, it is necessary to overcome these challenges and adopt a uniform framework for the prosecution of those accused of grave international crimes. The ICC can be the solution. The international community can overcome these challenges by encouraging all countries to join the Rome Statue and give it the sole jurisdiction over grave international crimes such as genocide, war crimes, or crimes against humanity.

The Carrier’s Defence to Liability for Delay under the Montreal Convention and EU Regulation 261/2004

This paper analyses the specific defence to liability for delay available to carriers, comparing its features under the Montreal Convention (MC99) and EU Regulation 261/2004 (Regulation 261). The relationship between these legal instruments has never been an easy one, whereas recent case law of the Court of Justice of the European Union on the socalled ‘extraordinary circumstances defence’ invites to explore similarities and differences between the international and the European approaches. The scope of application of the defence is clearer in Regulation 261 than in MC99. The former will only affect cancellations and delays – not cases of denied boarding, and its impact remains limited to the lump-sum compensation set out in Article 7 of Regulation 261. In turn, MC99 covers delays, but it is uncertain whether it also encompasses cancellations and situations of denied boarding – particularly when the passengers concerned are provided alternate transportation. Moreover, the defence laid down in MC99 applies to damage occasioned by delay, but the definition of ‘damage’ is left to domestic law. This situation gives rise to diverging decisions by national courts. Regarding the conceptualization of the defence, the wording of the relevant provisions might lead to think that both instruments share a regime of liability for presumed culpability. However, the extraordinary circumstances defence is much more complex. As a consequence, there is no alignment between MC99 and Regulation 261, although points of convergence are highlighted.

The Evolution of Same-Sex Marriage Case Law in Europe

Abstract The number of countries allowing same-sex marriage is gradually increasing. Currently, 37 countries have laws regulating same-sex marriages, specifying their status and/or the possibility of adopting children. These solutions counter discrimination against same-sex couples and are part of the protection of human rights. Against the background of other countries, the pan-European tendency to accept the institution of same-sex marriage is garnering positive attention, although it is still controversial in some countries. Regulations of European law and the case law of the Court of Justice of the European Union, the European Court of Human Rights and the constitutional courts, which play an essential role in anti-discrimination measures and are in favour of respecting human rights, provide crucial support. This article discusses the evolution of the jurisprudence of the ECtHR, the CJEU and the national courts of selected countries (Slovenia, Spain, Portugal, Germany and Austria) concerning same-sex marriage. It highlights how recognising the right to same-sex marriage does not come at the expense of the rights of others or the public interest.

Conceptual place and fundamental perspective of judicial precedent in the legal system of Ukraine

This article examines the role and relevance of the introduction of judicial precedent as a source of law in Ukraine, which is related to the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 (hereinafter – the Convention), Decisions of the European Court of Human Rights (hereinafter – the ECHR) and judicial practice of national courts. The opinion is substantiated that the introduction of judicial precedent as a source of law in Ukraine will have positive consequences for the legal system of Ukraine and will provide additional protection of human rights and freedoms. Prospects for the possible introduction of judicial precedent as a source of law and important institutional changes that can lead to a complete transformation of the current system are determined. In connection with this, the issue is analyzed, and a generalized characteristic is given regarding the role of court precedent in advanced countries, such as Switzerland, Poland, and France. The properties of the legal systems of the world, the peculiarities of the use and status of the Convention, and the judicial practice of the ECHR in Ukraine are also considered. The article presents an analysis of scientific research by advanced scientists and lawyers who formed a professional view on issues related to judicial precedent and possible reform of the current legal system. A generalized description of the concept regarding the nature and features of judicial precedent as a source of law is provided. Simultaneously, the author of the article notes that the issue of defining the conceptual place and fundamental perspective of judicial precedent in the legal system of Ukraine is very relevant and important for Ukraine, as it is related to the protection and provision of rights and freedoms of man and citizen. Accordingly, special attention is paid to the fact that this issue should be resolved at the legislative level, as this will help to avoid collisions, misunderstandings, and possible duplication of norms. Moreover, the introduction of legislative innovations and reforms requires the generation of an appropriate legal bridgehead with the possible training of courts. Thus, the author concludes that the main consequences of the introduction of judicial precedent as a source of law will be the following: stability and predictability of the legal system, increasing the independence of the judicial branch of government, borrowing the best international experience, unification, and harmonization of current judicial practice, respectively, additional protection of rights and civil liberties.

Can Sovereign-Owned Enterprises Be Prosecuted in National Courts?

Can Sovereign-Owned Enterprises Be Prosecuted in National Courts?

The European Union as a Community of Values: the Importance of the Dialogue between the Court of Justice of the European Union and National Courts

The European Union as a Community of Values: the Importance of the Dialogue between the Court of Justice of the European Union and National Courts

Analysis of the admissibility of establishing the circumstances of intentional deprivation of life of the testator by the heir in a civil case through the lens of the presumption of innocence, the practice of the European Court of Human Rights...

The relevance of the subject under study was conditioned by the fact that in Ukrainian judicial practice, both judges and experts who are members of the Scientific Advisory Council of the Supreme Court have differed in their opinions regarding the possibility of disqualifying an heir from inheritance based on the requirements of Article 1224, Part 1 of the Civil Code of Ukraine. The purpose of this study was to clarify such general legal issues as the applicability and extension of the presumption of innocence in civil proceedings, and protection against violation of this principle in the resolution of certain civil law disputes. The methods of analysis, synthesis, comparison, generalisation, and case study were employed to examine the decisions of national courts of general jurisdiction of various instances, the Constitutional Court of Ukraine, and the European Court of Human Rights. It was stated that the deceased heir – the accused, who inflicted serious bodily injuries to his father – the testator, as a result of which the latter died, cannot be considered as having no right to inheritance, based on the analysis of the content of Article 1224, Part 1 of the Civil Code of Ukraine. The study proved that a form of condemnation by public authorities and posthumous conviction outside the scope of due process of law would be establishment by a court in a civil case of the circumstances of intentional deprivation of the testator’s life by an heir, where the former died at the time of the consideration of a civil dispute. It is unacceptable for a civil court to rely on the circumstances of the indictment and the grounds for closing criminal proceedings against a deceased defendant – an heir. Only a guilty verdict establishes a person’s guilt. If it is referred to in other procedural decisions, it is probable that the person will be socially stigmatised. A civil court may not assume the powers of a court that are exercised only in criminal proceedings when resolving a dispute over inheritance. The practical value of the study lies in the development of arguments for the court and participants in the trial

The discourse of terror: carceralism, border politics, and security in Aotearoa New Zealand

ABSTRACT The discursive construction of terrorism in the media allows and limits possible policy responses. These constructions help set the precedent for modes of intervention and regularisation by the state by locating potential terrorists within the logic of security. Such a logic was a trademark of the so-called War on Terror and continues to be deployed around the world. This article examines the normative carceral discourse at play in the construction of terrorist perpetrators in Aotearoa New Zealand. Using the 2021 LynnMall terror attack as a case study, it investigates the limits of the New Zealand security dispositif that worked to construct the LynnMall attacker as a lost cause, incapable of intervention or rehabilitation. Drawing on insights from discourse theory, and critical discourse/dispositif analysis, it examines the resonant force between media discourses and the state’s security practices. Through an examination of national media coverage, court proceedings, and policy documents, it assesses the discursive conditions within which terrorist subjects are constructed for the public and regulated by the state. In doing so, it sheds light on the mutually reinforcing yet contradictory discourses of carceralism and border politics that inform contemporary security practices.

Scientific and Educational Review of Fast-Track Arbitration in the Context of Modern Practices

The length of trials before a national court and their high costs are two of the main reasons for the emergence of arbitration. Arbitration facilitates shorter and cheaper trials and enables the trial to be conducted by experts according to the will of the parties involved. This is why arbitration is extremely important in settling commercial disputes that can last for a long time. However, over time, due to the growing interest in arbitration and the nature of the disputes brought before arbitration, the processes began to take longer with high costs. To overcome this difficulty, the concept of fast-track arbitration with simplified procedures and fast conduct of the process emerged. This study will present a legal analysis of fast-track arbitration, advantages and disadvantages of expedited arbitration, will emphasize the distinctive properties of expedited arbitration, taking into account provisions in comparative law. Here, the perspective and general principles of expedited arbitration regulated by arbitral institutions in Europe, America and Asia will be explained in detail. Finally, the relationship between the general principles of arbitration and the suitability of fast track arbitration to those principles will be assessed.