Private Courts Research Articles

The Monopoly of Economic Justice: Judges versus arbitrators

The article explores the relationships between state economic courts represented by judges and arbitration courts as a manifestation of the conflict between public and private justice. The consequences of changes in state policy after the arbitration reform of 2015–2017 are discussed. Firstly, through the lens of Bourdieu’s perspective, the key factors influencing the emergence of a negative attitude in the judicial environment towards private justice are analyzed. Secondly, the establishment of the specialization of a particular subgroup of judges from the appellate instance of arbitration courts, who year after year deal with cases related to arbitration courts, is examined. During the empirical part of the research and interviews with judges from the appellate instances, it was found that their primary reference point, in addition to the law and personal convictions, is the orientation towards the higher court — the Supreme Court of the Russian Federation, where one judge largely determines the courts’ policy towards arbitration courts. Judges exhibit normative isomorphism, as similar experiences and practices prompt them to adopt similar strategies to protect their field from private justice. The article is the result of qualitative research based on interviews. Based on the assumption of the homogenization of the judicial sphere and judges’ defensive tactics to protect their field from external, private courts using institutional analysis and Bourdieu’s theories of fields and capital, the conclusion is drawn that judges of state courts tend to accumulate symbolic capital. This allows them to act as the only possible interpreters of legal norms — monopolists of justice. Through the lens of isomorphism theory, the conclusion is drawn that state courts implement the practice of coercive isomorphism, which has no other goals except forcing private courts to mimic state courts.

О правовой сущности частных постановлений (определений) суда в современном уголовном судопроизводстве

Issues related to the effectiveness of criminal proceedings in terms of achieving its appointment are among the key issues both in the theory of the criminal procedure and in the law enforcement practice of this area. One of the procedural means of responding to deviations from the requirements of the law is the power of the court provided by the Criminal Procedure Code of the Russian Federation (part 4 of article 29) to issue private rulings (determinations) on the basis of revealed violations of the law in the course of criminal proceedings. At the same time, despite the increasing attention in procedural science and law-enforcement practice to these pro-cedural decisions, the issues of procedural-legal nature of private (decisions) court rulings are among the de-batable in the theory of criminal procedural law, which determines the relevance and timeliness of addressing them at the level of scientific research. Within the framework of this study, taking into account the institutional approach and analysis of modern criminal procedure legislation, issues related to the procedural nature and grounds for the decision of private rulings (decisions) of the court are considered. Conclusions are drawn about the exclusivity of the named procedural acts in the system of other court decisions, their special role both in the process of ensuring the effectiveness of criminal proceedings in specific cases, and in the general direc-tion of improving the quality of justice.

Private determination of the court of the first instance in civil proceedings and responsibility for non-fulfillment of it

This article analyzes the general provisions and judicial practice regarding the issue of private rulings issued by the courts in accordance with Article 226 of the Civil Procedure Code of the Russian Federation, and also considers the main problems associated with non-execution of a private court ruling. A large number of scientific works of Russian and Soviet scientists are devoted to the problems of the institute of particular definitions. Meanwhile, the problem of nonexecution of particular definitions has not been given sufficient attention. The legislation of the Russian Federation is quite loyal to the issue of non-execution of private determination of the court. The procedure for bringing to civil procedural or administrative liability for violations related to particular definitions remains an unpopular legal procedure. The author revealed an unjustified differentiation in fixing the forms and procedure for the implementation of liability for failure to comply with a particular definition, as well as the inconsistency of the law in terms of establishing liability measures for the tort in question. The ways to solve these problems is to introduce the necessary clarifications into the current version of the Code of Civil Procedure of the Russian Federation, which will be proposed in this article.

Review: Cairo in Chicago: Cairo Street at the World’s Columbian Exposition of 1893

Review: <i>Cairo in Chicago: Cairo Street at the World’s Columbian Exposition of 1893</i>

A Private Ruling (Resolution) Addressed to a Lower Court: Issues of Theory and Practice

The grounds for the issuance of a private ruling (resolution) by the court are not clearly regulated in the Criminal procedure law, which often leads to their unjustified pronouncements and cancellations by courts of higher instances. The purpose of the article is to specify the grounds for the issuance of private court rulings. The methodological basis of the research is the universal dialectical method of scientific cognition, which made it possible to study the subject of research in relation to other legal phenomena, as well as general scientific methods of cognition (analysis, synthesis, induction, deduction, analogy, modeling) and private scientific methods of cognition (formally legal, historical-legal, comparative-legal, concretesociological). Research results and conclusions. A private court ruling must meet the requirements of legality, reasonableness and motivation. A private ruling against a lower court may be issued if it has committed such violations of the law that have restricted the rights of participants in criminal proceedings, violated the procedure of judicial proceedings and could affect the issuance of a lawful and reasonable judicial decision; violations are committed due to non-performance or improper performance by the court of its duties due to unfair or negligent attitude; violations are not related to the court’s assessment of the actual circumstances of the case, guilt, sentencing, which is carried out in accordance with internal conviction and motivated in the decision. The discrepancy of the position of the courts of different levels is not the basis for making a private determination in the absence of obvious significant violations of the law.

СТАНОВЛЕННЯ ВІТЧИЗНЯНОГО СУДОУСТРОЮ ТА СУДОЧИНСТВА: ДОБА УКРАЇНИ-РУСИ (ІХ–ХІV ст.)

The article acquaints the readership with the peculiarities of the formation of institutions of the judicial system and the judiciary in the 9th‑14th centuries, when, according to the apt expression of Professor M.Hrushevskyi, a state called Ukraine-Rus was established on the territory of modern Ukraine. The need for its appearance lies in the need to reform judicial institutions, in accordance with the criteria established by the member states of the European Union in order to fulfill the conditions for Ukraine to acquire the full status of a candidate for the European Union. Turning to the historical heritage left by our ancestors shows that the judicial system of Ukraine was formed on national authentic soil, has deep historical roots and it is necessary to reform it first of all in the direction of real assurance of the justice of decisions from the influence of factors of an administrative, corrupt and other illegal nature. The authors of the publication claim that due to the stratified structure of Russian society, there was no single court for all strata of the population in Ukraine-Rus. Secular – public and private courts and ecclesiastical courts with the corresponding category of cases, which were subject to the jurisdiction of the corresponding (secular or ecclesiastical) judiciary, were competent to administer justice within the state-­country. The princely, secular and community courts were public. Private – patrimonial or domain. The basic principles of their activity are established. It is noted that the court proceedings had an accusatory and adversarial nature, but the elements of the detective (investigative) process in criminal cases were separately applied when it was necessary to conduct an investigation on hot leads. The investigative investigative process took place in three stages, each of which is described in detail in the publication. The conclusions emphasize that the doctrine of judicial power was not directly related to princely or church government, but to the implementation of the idea of law as an instrument of a peaceful environment. In addition, it was based on the idea that the guarantor of justice is not only the princely court, but also vervny and secular courts based on customary law. Arbitration proceedings, which had a private-public nature, became widespread. The main purpose of the arbitration court was not to strictly observe the letter of the normative legal act, but to stop enmity and discord by achieving reconciliation between the parties to the conflict. The principles of glasnost, openness, competition of parties, formal equality of all participants in the process before the law, accessibility of the court, initiated by arbitration proceedings on the territory of Russia, have not lost their relevance even in the 21st century. In the doctrine of the modern judiciary in Ukraine, these principles are a marker of the level of democracy in Ukrainian society.

Обжалование следователем частных постановлений суда

In the article, taking into account the latest regulatory framework, investigative and judicial practice, the results of scientific research and the author’s practical experience, the practice of appealing against private court decisions (rulings) by investigators is considered. Actual practical examples are given, including decisions of courts of appeal. Investigators are offered practical recommendations on how to appeal court decisions.

Caught By Private Law: A Review Of Visitors’ Jurisdiction In Canada

Visitors, an office in charitable corporations that occupies the position of the Superior Court in all matters pertaining to the charity, are a forgotten area of law in Canada. This article resurrects the jurisdiction by explaining its utility for university corporations. Visitors are private courts of appeal from university decisions. They are empowered to adjudicate academic as well as legal disputes relating to relationships between the university, its officers, its professors, and its students. The article lays out the private law origins of the office and contrasts this approach with the administrative law model more recently in vogue. The administrative law approach to visitation has, over the course of the twentieth century, eroded the jurisdiction, yet it appears from Canadian practice that the jurisdiction remains eminently useful across the country. The article details just how the visitor’s office has been used in Canadian universities beginning in 1803 going up to 1992. In so doing, the office’s strong points as well as its weaknesses are discussed.

Trials by Ordeal in a Kentish Court in the Early Thirteenth Century

ABSTRACT The document presented here, one which has gone almost entirely unnoticed by historians, contains the record of three trials by ordeal undergone by suspected thieves, almost certainly in the first decade of the thirteenth century. It has a special interest in that it illustrates procedure not in a royal but in a private court, that of the bishop of Rochester at Southfleet. In various ways, it illuminates the charges against the accused and their responses to them, the procedure of the court and attendance at it, and the differing fates of the suspects. It shows that the court was not in fact entirely ‘private’, since it acted under the supervision of royal officials, while on one occasion a number of local gentry were present as well. But the record does not appear to have owed its survival to its legal or even social significance, rather it is suggested that it was preserved because the monks of Rochester cathedral priory regarded it as potentially useful in their recurrent disputes with the bishop.

FORENSIC EXAMINATION IN LATVIA’S CRIMINAL PROCESS

The article provides a theoretical analysis of the organization of the forensic examination in Latvia. In particular, the author investigates the organizational aspects of the forensic examination: legislative regulation of the status of the entity authorized to conduct the forensic examination; the possibility to conduct the forensic examination in criminal proceedings by private experts; peculiarities of taking up a position (obtaining a license to practice) and terminating a forensic expert etc. It is determined that according to the legislation of Latvia the right to carry out expert activity in the Republic of Latvia belongs to both state and private experts: state experts are people who carry out their activity in the state expert institutions. Private experts are involved in carrying out expertise by concluding civil contracts as self-employed people or as the forensic experts who are members of professional non-governmental associations. There are five state expert institutions in Latvia: the State Bureau of Judicial Expertise (accredited in 2008), the Forensic Directorate of the State Police (accredited in 2006), the State Medical Examination Center (accredited in 2013), the Examination Service under the General Directorate of the State border guards and the State Riga Psychiatric and Drug Center LLC. Since 1996, the Association of Independent Experts of Latvia has been operating in Latvia, comprising private court experts. All experts who may be involved in criminal proceedings must be certified. Certified expert information is placed in the Official Register of Forensic Experts. The Council of Forensic Experts is the compiler of the Register. The Register of Forensic Experts and any changes thereto shall be published on the website of the Judicial Administrations. In addition to the Register of Forensic Experts, there is a Register of Methods of Forensic Examination, which is also compiled by the Council of Forensic Experts. It should be noted that in Latvia a unified standard and qualification requirements have been developed for persons wishing to carry out forensic activities, which are enshrined in the legislation of Latvia and a procedure has been developed for certification of experts, as well as certification of expert research methodologies. At the same time, certain problems arise in practice (for example, the subjectively greater trust of the court in the expert’s conclusions provided by the state expert organization), requiring an urgent solution for the effective functioning of the system of forensic expert activity in Latvia.

سلطات مجلس الأمن تجاه المحكمة الدولية الجنائية

The Security Council is one of the main organs of the United Nations, and according to its convention, this organ has been authorized with many main tasks, so as to maintain peace and international security, out of which the establishment of International Private Courts or what is called Temporary Courts to prosecute those accused of committing international crimes. With the absence of international judiciary at that time, and after the establishment of the International Criminal Court, the relationship between the two was under consideration, especially with regard to the role of the Security Council and its authority in the referral of international crimes to the Criminal Courts and the extent to which this condition is mandatory, where a lot of discussion were held among the delegations participating in the Rome Conference that established the International Criminal Courts system in 1998, in supporting the inclusion of the role of a political organ represented by the Security Council in the procedures of an international judicial organ represented by the International Criminal Court, where the court is supposed to be independent in doing its judicial function away from politicization. The study aims to clarify the relationship between these two organs and the extent of the obligation to refer crimes by the Security Counsel to the International Criminal Court. The methodology used in this research are descriptive analysis to extrapolate the texts and legal materials related to the subject of the research, and analyse all that in order to reach results of the research. The results of the study showed that the Security Council - based on chapter VII of the convention- consists of many deterrent sanctions, starting with economic sanctions and ending with military deterrence. Although, the separation between them achieves the independence of the international judiciary and ensures that no foreign political group interferes or controls the court, which is intended to be independent and free to ensure the application of the international law.

Debt Litigation and the Performance of Law Courts in Eighteenth-Century Portugal

Theoretically, the extent to which the eighteenth-century Portuguese legal system was able to enforce loan contracts should be evident from the duration of the court proceedings and the execution of the collateral that secured the loans. Yet, data from a newly assembled data set that includes the contracts established by the Lisbon Misericórdia—the major lay brotherhood in Portugal and a leading creditor in the city—as well as 990 lawsuits from its private court of law (exclusive jurisdiction) have a different story to tell about the complex mechanisms behind the lending activities of the institution. Notwithstanding the reasonably rapid resolution of its cases and its routinely successful execution of collateral, the Misericórdia’s law court was powerless to solve the problem of default or to safeguard lenders’ property rights. The membership of creditors and debtors in the Misericórdia tended to undermine cooperation rather than enhance it, challenging the assumption that cohesive groups hold high levels of social capital.

The Ethiopian federation and private international law: the contours of the federal and the state governments’ jurisdictions

The Ethiopian Constitution divides the power to enact private laws between the federal government and the states. This entails certain inexorable private international law disputes which are concomitant of state private laws. The federal arrangement confers upon the states an inherent jurisdiction to wield disputes connected with their private laws. Nevertheless, the Federal Courts Proclamation and a precedent set by the Federal Supreme Court's Cassation Division render the Federal High Court the wielder of an inherent jurisdiction over disputes connected with state laws. Superciliously, the federal government has aggrandised its jurisdiction by extending it to disputes connected with state private laws. This paper addresses the question whether the power of the states to enact private laws subsumes a jurisdiction to wield private international law disputes. To this end, it analyses the relevant provisions of the Constitution, statutes and a case law. It also draws on the experiences of other federations. The paper will argue that the Constitution confers upon the states an inherent jurisdiction to wield disputes connected with their private laws. It concludes that the states should have their own private international law rules and courts designated to adjudicate private international law disputes.

QUO VADIS UNDANG-UNDANG POKOK AGRARIA? Suatu Tinjauan Terhadap Permasalahan Pertanahan di Usia Undang-undang Pokok Agraria yang ke Lima Puluh Delapan Tahun

Disputes in the world of business are not something to write home about. Amongst all the business-related sectors, one that often rears disputes is the agrarian sector. This is due to the close relationship between development and the need for land, as one of the primary needs of humankind. Therefore, a review and comprehensive exposition of disputes within the land sector and aspects of peaceful mediation of said disputes are needed to gain a deeper understanding of ways to achieve more effective and efficient land dispute resolution. In order to achieve these goals and objectives, an in-depth analysis is needed on the extent to which Undang-undang Pokok Agraria (The Agrarian Law) accommodates the resolution of the agrarian disputes and problems, as well as, in relation to the existence of implementing regulations of Undang-undang Pokok Agraria that support the resolution of land disputes that arose or which may arise in the future. Currently disputes over land can be resolved through the means of a lawsuit in the Private Court of Law or through peaceful mediation. Peaceful mediation of land disputes can be carried out both within and outside the Court of Law. Based on the research, mediation in the court has a low rate of success mainly because of the “out for war” mentality of the parties involved which have been formed prior to entering the mediation process. With the settlement of cases through the Judiciary Court of Law becoming a go-to option in the majority of land dispute resolution, the high costs and length of time commonly incurred in such process greatly hampers the resolution of numerous land disputes and tends to be a field of "money war" between litigant parties. If this continues, at its age of 58 years, it must be questioned "Qua Vadis Undang-Undang Pokok Agraria of the Republic of Indonesia?”

A Swarm of Competition Law Based Damages Claims in Turkey: Alarm Bells Are Ringing

The competition law enforcement in Turkey is based on private and public enforcement pillars. Turkish Competition Authority (TCA) has sole discretion to enforce the Competition Act whereas the litigations initiated by the victims of anti-competitive conduct are seen in private courts. The Competition Act in Turkey which was enacted in 1994 contains certain provisions concerning the damages claims to be made by the victims of the violations of anti-competitive conduct (e.g. treble damages) and the general provisions of the Law of Obligations concerning tort are also applicable in that respect.

Free Trade Agreements, Private Courts and Environmental Exploitation: Disconnected Policies, Denials and Moral Disengagement

Although there is strong scientific consensus that climate change and environmental degradation are occurring, there is also a significant body of opinion that is sceptical about, or denies the validity of, evidence for this. However it is not solely the nature of differing views about global warming or ecological disaster that is being contested but the case for or against intervention and regulation in the market. At an international level, gestures toward ‘sustainability’ are (i) compromised by combining them with declarations of the need for continued economic growth, and (ii) undermined by the arrangements put in place by existing and new transnational trade agreements. The paper examines these views and developments, and the patterns of denial, disconnection and fragmentation they display.

Public Defenders vs. Private Court Appointed Attorneys: An Investigation of Indigent Defense Systems

To provide essential, constitutionally mandated legal services for defendants without financial means, US courts employ indigent defense systems composed of private court-appointed attorneys and public defenders’ organizations. I investigate the public defender’s causal effect on defendant sentencing outcomes relative to private court-appointed attorneys using a new “twins design” identification strategy. I argue and show empirically that in multiple defendant cases the decision of who is assigned to the public defender organization in jurisdiction X, a large urban locality, can be treated as close to a randomized experiment, which can be utilized to measure the effectiveness of court-appointed private attorneys relative to public defenders. I find that public defenders out-perform court-appointed attorneys in a range of sentencing outcomes. Employing a similar identification strategy in federal courts finds that public defenders perform at least as well if not better then court-appointed attorneys in multiple defendant cases. I provide strong evidence of selection in the assignment of attorney types to defendants in both jurisdiction X and federal courts, which makes a naive comparison invalid and misleading.

Enactment of the Food Safety Modernization Act

The United States’ Food Safety Modernization Act (FSMA) revises the US Food and Drug Administration's regulatory authority. While expanding FDA's authority, the legislation replicates and relies on private systems of standards and third party audits, albeit with modifications. This article argues that public and private actors develop food safety regulations within multiple types of institutional venues, including private standards regimes, courts, congresses, and government regulatory agencies. It examines how interactions within each of these venues are shaped by stakeholders’ interests, and how the relevant subset of interactions within these venues ultimately shaped the FSMA. The article concludes by offering insights into what consequences these interactions and outcomes may have on the roles and capacities of affected stakeholders in food safety governance.

More than Officers and Officials: Britons in Occupied Egypt, 1882–1922

Studies of the British in Egypt during the British occupation (1882–1922) have generally focused on the lives and exploits of the upper- and middle-class Britons who served in the military or in the civil service. Drawing from private papers, census data, court archives and business records, this article describes the socio-economic space inhabited by non-official upper- and middle-class Britons as well as those from the lower middle and working classes within the hierarchical structure of Egypt's British community. It discusses the income levels of British upper-middle-class lawyers, doctors, engineers, teachers, bankers, businessmen, clergymen and missionaries; lower-class clerks, artisans and policemen; and working-class tradesmen, railway workers and domestic servants in the context of both their Egyptian and British socio-economic environment. The research also seeks to illuminate some of the hardship, inequality and snobbery that working-class Britons encountered in Egypt. Throughout the analysis, comparisons between the income levels for similar occupations of the British in Egypt and their counterparts in Britain are used to discern possible motivations for their working abroad. Since little research has been done regarding the non-elite Britons in Egypt during the occupation and particularly concerning those from the lower classes, this effort aims to be a useful contribution to knowledge of British imperial history and the colonial experience.

The High Economic Costs of Cartels: Can Private Enforcement Help?

This chapter examines anti-cartel enforcement in selected jurisdictions around the world, paying particular attention to the role of private court actions in attaining optimally deterring sanctions. The principal conclusions are as follows. There are numerous indicators that enforcement in North America comes closest to optimal deterrence of illegal cartel conduct. Monetary penalties are roughly commensurate with the economic injuries imposed on customers by price fixers. Since about 2000, the European Union – both the European Commission and its National Competition Authorities – have pulled ahead of North America in the size of fines imposed on cartels. While there are glimmers of change afoot, the EU's fight against cartel violators is hampered by court rules that severely limit the rights of cartel victims to seek compensation in private actions. Unlike the United States, EU law does not permit sanctions to be imposed on cartel managers, nor is this frequent in all but a few of its Member States. Cartel enforcement is weakest in Asia, Africa, and Latin America. There are a few rising stars on these continents, but government entities rarely see their efforts complemented by significant private settlements or damages awards to aggrieved cartel victims.