National Courts Research Articles

Legal perspectives on climate change and inequalities

Abstract In many areas of public health policy, litigation has delivered significant, long-lasting impacts. Examples include tobacco control, increasing access to treatments for HIV, and addressing air pollution and climate change. Litigation is an established part of public health’s advocacy toolbox in national courts, and increasingly in international courts and tribunals. In responding to climate change, in addition to potential policy and law reform, climate change litigation creates opportunities for public scrutiny and debate by raising awareness of inaction or harm caused by governments or private sector polluters, and sparking wider community mobilisation for climate action. Where climate change litigation is based on human rights claims, credible science-based evidence of the health and other human rights impacts of climate change is essential. Public health professionals are increasingly involved in assembling and presenting such evidence, often focusing on vulnerable populations. However, the multiple intersecting identities of vulnerable populations have not been sufficiently explored. For example, how does intersectional disadvantage influence the ways in which evidence of the impact of climate change is assembled and assessed? How are these issues addressed in the courts? Examples include older women (KlimaSeniorinnen v. Switzerland), young people, from both the global South and global North, in urban or remote areas, or with different pre-existing health conditions (Sacchi et al. v. Argentina et al), and Indigenous people, including women and children (Daniel Billy and others v. Australia; Teitiota and others v. New Zealand). Multiple identities can compound vulnerability. For example, young people may be more vulnerable both due to their physical immaturity and due to eco-anxiety and other mental health impacts. This presentation will explore these issues, and the critical role of public health professionals in legal action to address climate change.

Constitutional Identity Between Riga and Strasbourg: The Courts’ Dialogue Developing Latvian Constitutional Law

The article provides insight into the recent development of the concept of constitutional identity in the Latvian legal system. The authors mainly focus on the dialogue between the national highest courts, especially the Constitutional Court, and the European Court of Human Rights and the Court of Justice of the European Union, concerning the concept of constitutional identity. In recent years, both supranational courts have dealt with cases involving various aspects of Latvia’s constitutional identity and the respected constitutional values, norms, and principles that define it, as well as the relevant jurisprudence of the national highest courts. The case study of Latvia demonstrates that it is possible to guarantee a harmonious approach to implementing constitutional identity in light of the state’s international obligations as a member of the European Union and the Convention on Human Rights.

FIFA’s Football Agent Regulations and European Competition Law

Abstract We assess the relationship between professional sport and European Union competition law using the example of the FIFA Football Agent Regulations (FFAR), a set of rules enacted by FIFA, the world football governing body, to regulate the activities of football agents. The FFAR have been challenged under competition law before national courts and in arbitration proceedings before the Court of Arbitration for Sport. The European Court of Justice has been asked to rule on the matter. The FFAR are the result of an anti-competitive decision by an association of undertakings. In particular, there is no exception for such agreements under the so-called Meca-Medina test. This analysis is supported by the European Court of Justice’s 2023 rulings in sports cases, in particular the European Superleague.

Considerations on insurance recourse and the status of the consumer in motor third-party liability insurance – comments on the background of the preliminary inquiry submitted to the Court of Justice of the EU by the rajonen sad in Sofia, Bulgaria, on June 26, 2023 – ZD ‘BUL INS’ AD vs PV (Case C-387/23, BUL INS)

The article is an attempt to provide a doctrinal answer to the first question posed by the national court in the form of a preliminary question to the CJEU in the case ref. C-387/23. At the same time the text contains considerations on the essence of motor insurance, the construction of atypical recourse of the insurer, as well as, to the extent necessary, refers to the qualification of the consumer in civil and insurance law. Attention was also paid to the stature of the uniform law on the insurance contract using the example of PEICL. Reference is also made to the regulations of national law and final conclusions are made.

The role of the International Criminal Court in criminalizing Israeli attacks on the Palestinian people

The International Criminal Court, which is governed by the Rome Statute, is the first permanent court established on the basis of a treaty established to hold accountable the perpetrators of the most serious crimes at the global level, such as war crimes, crimes against humanity, and genocide. On July 17, 1998, the work of the Diplomatic Conference on the Establishment of an International Criminal Court concluded with the approval of the adoption of the Statute of the Court. The International Criminal Court is a permanent and independent institution and is not considered one of the sections of the United Nations. The Statute clarifies that the main task of prosecuting and punishing the perpetrators of crimes lies with States parties, and the Court complements those efforts. The Court is considered the focal point for the application of the international criminal justice system, to include national courts, international courts and courts that include national and international elements. The increase in the intensity of international conflicts and wars in many parts of the world has had an impact on the increase in the commission of war crimes against civilians and the high rates of human rights violations, in the absence of an appropriate mechanism adopted by the international community to reduce these violations and punish and prosecute those who are behind them, whether they are individuals, states, organizations or governments.

No need to look, trust me! Mutual trust and distrust in the European arrest warrant system

Abstract No cooperative scheme in EU law has displayed bigger tensions between mutual trust and fundamental rights protection than the EAW system. Despite the requirement developed by the CJEU for national courts to trust each other and recognise each other’s arrest warrants, the reality on the ground has shown high levels of distrust between national courts regarding Member States’ alignment with core EU values. In this contribution, we analyze how the CJEU has managed such tensions in the EAW system. To that effect, we first put the Court’s EAW case law into context by examining the broader language of mutual trust used by the Court in other fields of EU law. In doing so, we point out how the Court has espoused different levels of lawful distrust to be exercised in different circumstances under the scope of application of mutual trust. Given that broader context, it is contradictory for the Court to mainly view mutual trust as a requirement rather than a reality in need of permanent and continuing justification between national authorities. The latter conception of mutual trust is more apt to be the basis of EU horizontal cooperation, which must be value-based and sincere according to the Treaties. Therefore, we propose a bidimensional account of mutual trust as a legal principle, one that accommodates both trust and distrust as tools for managing the uncertainty and dynamic nature of trust-based cooperation. Finally, we explore how such account of mutual (dis)trust can be concretised by the Court and other political institutions.

Procedural fairness in automated asylum procedures: Fundamental rights for fundamental challenges

In response to the increasing digitalization of asylum procedures, this paper examines the legal challenges surrounding the use of automated tools in refugee status determination (RSD). Focusing on the European Union (EU) context, where interoperable databases and advanced technologies are employed to streamline asylum processes, the paper asks how EU fundamental rights can address the challenges that automation raises. Through a comprehensive analysis of EU law and several real-life cases, the paper focuses on the relationship between procedural fairness and the use of automated tools to provide evidence in RSD. The paper illustrates what standards apply to automated systems based on a legal doctrinal analysis of EU primary and secondary law and emerging case law from national courts and the CJEU. The article contends that the rights to privacy and data protection enhance procedural fairness in asylum procedures and shows how they can be leveraged for increased protection of asylum seekers and refugees. Moreover, the paper also claims that asylum authorities carry a new pivotal responsibility as the medium between the technologies, asylum seekers and their rights.

Cooperation between national courts and EU institutions in competition law cases

The article explores the interplay between national courts and European Union institutions in the context of competition law enforcement of rules enshrined in Articles 101 and 102 TFEU. Cooperation between national competition authorities and national courts on one hand and EU institutions on the other hand is crucial for ensuring the effective and consistent application of competition rules. The article deals with the mechanisms of this cooperation. It examines the role of the European Commission and the Court of Justice of the European Union (CJEU) in providing guidance to national competition authorities and national courts. The article underscores the importance of a cohesive approach to competition law enforcement that is applied by national institutions of the EU member states. The concept and meaning of legal security in criminal law is well defined by Professor Jadwiga Potrzeszcz who states that "legal security is a state achieved by law established in general, and in particular by means of criminal law, in which human life’s goods and interests are protected in the most comprehensive and effective possible manner (and) harmonizes properly with the most important functions of criminal law, namely with a protective function and a guarantee function." (Potrzeszcz, 2018, p. 301) In accordance with the aforementioned definition, the author aims to introduce Criminal Codes that were in effect in the territory of present-day Slovakia, shedding light on whether they were guarantees of legal security in the state or not, i.e., whether they protected "human life’s goods and interests in the most comprehensive and effective possible manner."

The hidden histories of the Pinochet case

AbstractThe world's imagination was caught by the 1998 arrest in London of General Augusto Pinochet on charges of egregious human rights crimes and the 16‐month battle to extradite him to Madrid. For the first time, a former head of state had, while travelling abroad, been arrested on such charges, with his claim to immunity being rejected by a national court. The case's notoriety increased when Lord Hoffman, a judge when it first came before the Law Lords, did not publicly disclose his links with Amnesty International, an intervenor in the proceedings. Pinochet's release on health grounds compounded the controversy. This article reveals hidden histories behind the Pinochet case, advancing our understanding of its progression and wider significance. It illuminates the relationship between law and politics, the role of personal views and judicial creativity in the UK's top court, the ways in which law operates in practice, and its promises and limitations.

The Court of Justice in Staatsanwaltschaft Berlin v. M.N. (EncroChat): From cross-border, data-driven police investigations to evidence admissibility

The ruling of the Grand Chamber of the Court of Justice of the EU (CJEU) in Case C-670/22 Staatsanwaltschaft Berlin v. M.N. addresses the realities of data-driven police investigations in the light of the Directive 2014/41/EU on the European Investigation Order (EIO Directive). In particular, it examines the cross-border, digital investigation of the encrypted communication network EncroChat and the use and sharing of intercepted telecommunication data in criminal proceedings. In doing so, the CJEU offers clarifications as to the interpretation of the term ‘issuing authority’ under the EIO Directive and the proportionality requirements for issuing an EIO, taking into account its prior jurisprudence on the implications of access to traffic and location data for the private life of the persons concerned. More importantly, this CJEU ruling takes a stand on admissibility of intercepted data as evidence in criminal proceedings, considering the technical complexity of contemporary investigation measures and the secrecy of said police methods. Overall, although this judgment seems to hold no great surprises regarding the interpretation of the EIO Directive's provisions, it underscores the important role of the national legislator and national courts in striking the right balance between rearing the rewards of data-driven policing and safeguarding defence rights.

Problems of enforcement of court decisions on recovery of spousal maintenance abroad: legal and practical obstacles

The article deals with the problems of recognition and enforcement of Ukrainian court decisions on recovery of spousal maintenance in foreign countries. The author emphasises that the current conditions associated with the introduction of martial law in Ukraine have brought new challenges to family legal relations which require further research in order to provide proposals for their solution. The author substantiates that the stay of the payer of spousal maintenance abroad makes the issue of proper fulfilment of his/her obligation particularly relevant in modern conditions. The author examines international conventions relating to the enforcement of the obligation to pay alimony in foreign countries. It is established that despite the existence of the conventions studied, there are difficulties in the enforcement of court decisions. The author examines the peculiarities of recognition and enforcement of a court decision on the recovery of alimony in a foreign country and the problems that may arise for plaintiffs. The author establishes that despite the legal force of a court judgment in Ukraine, it cannot be automatically enforced in a foreign country without prior recognition. Attention is paid to the problem of impossibility of recognition for enforcement of a Ukrainian court judgment in a foreign country in case of improper notification of the defendant of the court proceedings. The author highlights the problem of proper service and notification of the defendant located abroad of the proceedings and the grounds for the claim, which significantly affects the consideration of the case within a reasonable time and further enforcement of the court decision. The author establishes that notification of the defendant of the commencement of litigation in Ukraine depends on cooperation between Ukrainian and foreign authorised bodies, which affects the efficiency of the enforcement of a court decision. The author focuses on the problem of searching for a defendant in a foreign country and the possibility of enforcement of a court decision on recovery of spousal maintenance. Attention is drawn to the problem of enforcement of a court decision on the recovery of spousal maintenance from persons who have been granted refugee status or from persons in need of temporary protection in foreign countries. The author argues that further research should be aimed at finding and solving problems related to the enforcement of national court decisions in foreign countries.

Science in a shifting policy system.

In June, the US Supreme Court overturned a 40-yearold legal principle known as the Chevron doctrine, which deferred to federal agencies on how regulations are interpreted in legal cases when the legislation enacted by Congress is unclear. Striking a blow against this precedent, Supreme Court Chief Justice John Roberts indicated that Chevron was "fundamentally misguided" and that only the nation's courts have the prerogative to interpret the laws they administer. Judges across the United States now anticipate an onslaught of litigation seeking to overturn federal regulatory actions, and many of these lawsuits will turn on scientific evidence that guided those actions. Instead of deferring to the scientific and technical expertise of federal agencies, courts must now independently review the scientific record behind a challenged regulation for its persuasiveness, along with scientific findings produced by the litigating parties. It's too early to fully unpack the impact of overturning Chevron, but the scientific community must step forward to support the crafting of clear and evidence-informed legislation, and the use of scientific evidence in the courts.

Fuzzy Universality in Climate Change Litigation

Abstract Climate change litigation is developing rapidly and pervasively, emerging as a space for legal innovation. Until now, this process has occurred mainly in national courts. The result is a decentralization of the interpretation of human rights relating to climate change. This article argues that such decentralization could, in principle, have a destabilizing impact on claims to the universality of human rights. However, close examination of this litigation shows that a prototype is emerging, certain features of which are becoming ‘hard wired’ through the process of judicial dialogue. By exploring the content of this prototype, its decentralized development, and its self-reinforcing nature, we see a legal space emerging in which environmental human rights sit between the universal and the contextual.

Genosida Sebagai Pelanggaran Hak Asasi Manusia (HAM) Yang Berat

Deprivation of Human Rights using various criminal methods has been happening for a long time. Since then, many international regulations have set limits and prohibitions regarding war crimes up to genocide, including judicial bodies that are given responsibility for crimes that have been committed. By knowing the actions and bodies authorized to prosecute serious human rights violations, we can understand current changes in the existence of the crime of genocide. The aim of realizing international legal instruments is to fulfill the human rights of victims, the world community and perpetrators. The research method used is normative juridical. The research approach is through a statute approach, which examines problems using statutory regulations by analyzing relevant laws to be used as a legal basis, such as the Convention on the Prevention and Punishment of the Crime of Genocide in 1948, the Statute of the International Criminal Court in 1998 and the Law on Law Number 25 of 2000 concerning Human Rights Courts. The research results concluded that the crime of genocide is one of four serious human rights violations within the jurisdiction of the International Criminal Court. Genocide always involves two things, namely: objectively it refers to the act of extermination and subjectively the target of the action is a certain group. The International Criminal Court, in accordance with Article 34 of the 1998 Rome Statute, consists of four parts: The Presidency, the Chambers, the Offices of the Prosecutors and the Registry in carrying out its duties. The International Criminal Court will only carry out its functions if the National Court cannot carry out its functions properly, in this case the meaning is if the National Court does not want to try the perpetrator of the crime and unable.

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.