Procedural Norms Research Articles

The Constructive Role of General Principles in International Arbitration

AbstractIn international arbitration, treaty standards, such as fair and equitable treatment (FET), general procedural norms, such as due process, and excuses for suspension of performance, such as the exceptio defense, draw on general principles of international law to clarify their interpretation and application. This article will (1) show what general principles of international law are, how they form and how they are distinct from general principles in domestic, public and private law systems; (2) illustrate their role with specific attention to their unique application in different international law contexts; (3) use the examples of FET, procedural norms and suspension of performance to show how general principles of international law are used in international arbitration; (4) warn against their inattentive, sloppy or haphazard use and application; and (5) ultimately highlight the benefits of incorporating general principles in international arbitration while proposing a precise methodology for their use.

Place of workplace law in the national legal system

The article proposes a system of law to be regarded as a set of elements of law that complement each other, interact and form a unity with a number of specific features. The author argues that in the system of law the emphasis is on the structure of law, the separation among its elements of the branch of sub branch, institutions, norms of law, and in the legal system, although the law is the main element, but not a single element, it is precisely because of this, to find out the phenomenon of service the right to determine its role in the legal system. The article proposes in the aspect of the field of structural law of the law to consider it as a set of branches, sub-sectors, institutes and norms of law. The author analyzes scientific approaches to the understanding of the service law as an industry, sub branch, institute of administrative law, distinguishes the features of the service law and proves that it has signs in the subregion of administrative law. It is proposed to consider the system of law in the aspect of the division of the right to public and private, material and procedural, regulatory and security, and analyze their definitions, characteristics, specifics of each of them. On the basis of a detailed analysis of the above-mentioned provisions, the author proposes to consider the place of service law in the system of law in terms of its division into public and private as a sub-area of public law. In clarifying the place of service law in the system of law in the division of material and procedural, the author notes that the employment law combines material and procedural norms and acts in material and procedural law. In the context of the division of the right to a law, the regulator and guardian of the author notes that the service law combines norms and regulatory and security, which is why it is regulative-security, however, the regulatory element is still dominant. The author notes that only in the complex should consider all these issues to clarify the place of employment law in the system of national law

Liability for Administrative Offences: Standards of European Court of Human Rights and the Current State of the Legislation on Administrative Offences in Russia

Recently, there has been a substantial increase in the number of judgments delivered by the European Court of Human Rights with regard to the Russian Federation on the complaints filed by Russian citizens, including the complaints related to the liability for administrative offences. The characteristic tendency of the European Court of Human Rights to qualify administrative offences as criminal acts not only brings into focus the issue of ensuring procedural safeguards for individuals charged with administrative offences but also touches upon material aspects of the relation between criminal and administrative law-breaking in Russia as well as changes the traditional juristic view upon the essence of the legislation on administrative offence. Political and economic reforms of Perestroika and the first post-Soviet decade had a significant influence on the institution of administrative justice. Hence, on the one hand, its current state is caused by objective reasons. On the other hand, the legislator, having quite a broad discretion in determining whether to impose administrative or criminal sanctions in each particular case, has seriously blurred the material boundary between criminal and administrative offences. The problem of present-day legislation on administrative offences in Russia is a material hypertrophy of administrative liability together with continuous reduction of procedural safeguards and guarantees for individuals charged with administrative offences. The procedural norms of the existing Code of Administrative Offences of the Russian Federation cannot provide for the adversarial nature of the administrative trial due to the fact that the Code of Administrative Offences of the Russian Federation is not methodologically aimed at regulating administrative (judicial) proceedings.

Coordination of Fragmentation within the International Air Law

The purpose of the study is to analyze the development and branching of the directions for codification and institutionalization of international air law in the context of discussions involving fragmentation of international law. The main task of the work was to determine, on the example of international air law, the nature of the formation and codification of unified international standards in this area and their subsequent distribution of the areas of regulation and levels of specification by specialized subjects of delegated rule-making. There have been used methods of comparativistics and hermeneutics on which, first of all, the comparison and interpretation of the texts of the Paris and Chicago Conventions and their annexes have been made. It is shown that international public law has a tendency of movement from national acts through the level of bilateral agreements to the formation of agreements and regulations of the regional and global levels. This tendency is also quite clearly expressed in the history of the development of international air law. It is also determined, as a fundamental historical trend, the preservation of the dynamic inverse association between the indicated levels in the complication and branching of the directions of codification and institutionalization of international air law. This indicates the need to take into account a non-linear nature of developmental processes of any legal field, including in its characteristics complications, with the support of constant feedback between different levels of legal personality; connection of the subject area of regulation with the specific volume of competence of institutions responsible for one or another level of delegated rule-making, etc. Considering these and other aspects is important to harmonize the problems of fragmentation and to ensure the effectiveness of international law in general and international air law in particular. The connection of the fragmentation of international law is largely due to the uncertainty of the status of individual levels of delegated legal personality and inconsistency of their correlation at the level of international agreements. The problems of fragmentation, which are certainly inadmissible from the point of view of positivist legal thinking, are a source of uncertainty in many important issues that require clear coherence, regardless of conceptual approaches. From the standpoint of postpositivist concepts, it should be sought not so much in substantive codified rules, but in the effectiveness of procedural norms and the activities of the institutions responsible for reconciling the conflict of interests. However, substantive rules must be also involved in new pluralistic approaches to the law, which is not identified with the will of the state.

International Law, Pragmatics and the Distinction between Conceptual and Procedural Meaning

Using examples from international law, the authors demonstrate the usefulness of pragmatics in studying legal interpretation. In order to do this, they draw on Relevance Theory as a major theory in modern pragmatics. In pragmatics, there is an ongoing debate on the distinction between conceptual and procedural meaning. The paper unpacks this debate and shows how it can be employed to better explain interpretive processes in international law. Procedural meaning occurs in, among others areas, connectives such as “and” and “or”. These connectives frequently appear in the provisions of international treaties. Examples of substantive and procedural norms in international treaties illustrate how procedural meaning plays a central role in interpretation. The article also reveals how interpreters of law are generally unaware of the influence of procedural meaning on their interpretive decisions.

ОЦЕНОЧНЫЕ ПОНЯТИЯ В ГРАЖДАНСКОМ ПРОЦЕССЕ

The article discusses the use of evaluative concepts in civil proceedings, as fixed both in the texts of normative acts and in doctrine. It has been proved that the absence of normative guidelines or concretization of the notion in acts of higher judicial agencies leads to contradictory judicial decisions, violates the uniformity of judicial practice and reduces guarantees for judicial protection of violated rights and safeguards. The authors classify and give general characteristics of categories that have blurred content. There are three groups of evaluative concepts: evaluative categories that are specified in the norms of the procedural code; evaluative concepts that do not have a normative definition, but are disclosed and specified in judicial acts of the highest judicial bodies of the Russian Federation; evaluation categories that are not disclosed both in procedural norms and judicial practice. The article emphasizes that established uniformity in the application of evaluation categories will minimize legal conflicts, gaps and contradictions, the multitude of which undermines the authority of the judicial power and violates the right for a fair trial.   &nbsp

The Singapore Transboundary Haze Pollution Bill in the context of ASEAN regionalism and cooperation

The Southeast Asian region has experienced transboundary haze on an almost annual basis for decades. ASEAN has been the platform for regional cooperation and collaboration for regional haze mitigation since 1985. ASEAN’s main legally-binding instrument for this purpose is the 2012 Agreement on Transboundary Haze Pollution (ATHP). Despite this, haze episodes continue to persist until present times. This paper analyses recent legal developments related to transboundary haze management among the three main affected countries; Indonesia, Malaysia and Singapore. Particularly, it examines Singapore’s Transboundary Haze Pollution Act, an extra-territorial act that extends criminal and civil liability to anyone causing or contributing to haze in Singapore. It also analyses Indonesia’s ratification of the ATHP, which followed soon after Singapore unilaterally passed their Act. Finally, it considers Malaysia’s indecisiveness in deciding its next legal move in the face of these developments among its neighbours. The ASEAN Way, a set of behavioural or procedural norms that govern regional engagement, prescribes nonlegalistic procedures and non-interference of sovereign rights, among others. This paper uses the framework of the “myth” of the ASEAN Way, popularly argued by Nischalke in 2000, to explain the changing positions of the associated states towards legal recourse related to transboundary haze. It argues that ASEAN member states can choose whether or not to adhere to the ASEAN Way in order to preserve crucial economic interests, without suffering any consequences. Hence, shifting national interests among these three states over time can likewise explain shifting attitudes and compliance towards certain ASEAN Way norms.

The Singapore Transboundary Haze Pollution Bill in the context of ASEAN regionalism and cooperation

The Southeast Asian region has experienced transboundary haze on an almost annual basis for decades. ASEAN has been the platform for regional cooperation and collaboration for regional haze mitigation since 1985. ASEAN’s main legally-binding instrument for this purpose is the 2012 Agreement on Transboundary Haze Pollution (ATHP). Despite this, haze episodes continue to persist until present times. This paper analyses recent legal developments related to transboundary haze management among the three main affected countries; Indonesia, Malaysia and Singapore. Particularly, it examines Singapore’s Transboundary Haze Pollution Act, an extra-territorial act that extends criminal and civil liability to anyone causing or contributing to haze in Singapore. It also analyses Indonesia’s ratification of the ATHP, which followed soon after Singapore unilaterally passed their Act. Finally, it considers Malaysia’s indecisiveness in deciding its next legal move in the face of these developments among its neighbours. The ASEAN Way, a set of behavioural or procedural norms that govern regional engagement, prescribes non-legalistic procedures and non-interference of sovereign rights, among others. This paper uses the framework of the “myth” of the ASEAN Way, popularly argued by Nischalke in 2000, to explain the changing positions of the associated states towards legal recourse related to transboundary haze. It argues that ASEAN member states can choose whether or not to adhere to the ASEAN Way in order to preserve crucial economic interests, without suffering any consequences. Hence, shifting national interests among these three states over time can likewise explain shifting attitudes and compliance towards certain ASEAN Way norms.

Modern trends of art post-graduate pedagogical education

The article is devoted to considering modern tendencies of art post-graduate pedagogical education. There are elucidated views of native scientists about tendencies of art education development under conditions of post-graduate pedagogical education. There are noted three main components that provide andragonization of content, forms and methods of teaching in the system of post-graduate pedagogical education, among which: problem character of content of post-graduate pedagogical teaching, use of situation character of learning and procedural norms of its existence, dialogue character of its content. The native experience of organization of art post-graduate pedagogical education is described. There are elucidated the ways of mastering innovative pedagogical and art technologies at courses of qualification improvement for professors of art disciplines. There are described the author special courses, directed on spreading ideas of the advanced pedagogical experience. Problems of the development of pedagogical creativity and creative potential of a professor of art disciplines are indicated. Special features of the training course are described; construction, advantages of teaching and training components are elucidated. There are determined the main problems in organizing courses of qualification improvement for art professors. There is presented the experience of organizing problem, author, thematic courses, directed on developing the creative potential of professors of art disciplines. There is presented the experience of the special course, directed on developing the creative potential of a professor of art disciplines. The structure of integrating training activities is described. The attention is accented on the content component of the special course on developing the creative potential of professors of art disciplines. There are elucidated problems of motivation to creative kinds of activity, assessing-reflecting component. There are indicated problems of individualization of teaching, choice for an individual trajectory of creative learning. There is elucidated the practical directionality of teaching professors of art disciplines in the training course on developing the creative potential, types of pedagogical practice organization. There are elucidated problems of creation of the scientific-methodological and visual support of the educational process in post-graduate pedagogical education. The attention is accented on the content filling of thematic, problem courses for improving the quality of teaching professors. There are determined the prospects of development of course training and main directions of solving modern problems in art post-graduate pedagogical education

THE STAGES OF CODIFICATION OF THE AUSTRIAN CRIMINAL PROCEDURAL LAW (XVIII–XIX CENTURY)

Considered the historical preconditions, political and legal consequences and historical significance of the codification of the Austrian criminal procedural legislation in the XVIII–XIX centuries. Particular attention is paid to the study of the historical stages and regularities of the reform of the criminal procedural law of Austria and Austria-Hungary. Analyzed the process of creation and introduction of the Austrian criminal codes, which were the source of criminal procedural norms, in addition, it is distinguished the regularities of codification of separate Austrian criminal procedure codes in the appropriate historical period, which also extended their influence on the territory of Galicia. Emphasized that the classification of the territory of Galicia in the experimental legal field of the Austrian monarchy in the scientific literature requires a more in-depth study. Established that the Austrian Criminal Code of 1796, which was created by the Austrian legislator after the model of the former criminal law, which contained, apart from the criminal norms, also the norms of the criminal process. It should be emphasized that such legislative activity was justified by the development of criminal law and the process that was influenced by the formation of the Romano-Germanic system of law in the leading European countries. It is known, there was a form of criminal justice in the European states known as inquisition process which had a negative effect on the development and establishment of criminal justice in Austria and Austria-Hungary in general. Discovered the following problems of Austrian criminal justice: application of the inquisition process, lack of principles of law (independence of judges, publicity, openness, etc.). The conclusion was drawn as following: the purposeful actions of the Austrian legislator were directed, first of all, to the codification of the criminal and criminal-procedural norms contained in the relevant regulatory acts, often in the codes. Despite that, criminal justice constantly required legal regulation and practical improvement as well as bringing in the standards of the contemporary development of socio-economic, political-legal relations during the era of "enlightened absolutism." It is also stated that the Criminal procedure code of 1850 had a positive influence on reforming the Austrian criminal procedure. But it was extended across Galicia only after testing in other parts of the Austrian monarchy. The code advantaged the principle of social justice in ensuring the independence of judges and the judiciary, therefore, was replaced by the Criminal procedure code of 1853. It was established that the codification of criminal procedural rules was constantly based on the previous achievements of Austrian law science and practice and became the source of the Austrian Code of Criminal Procedure of 1873, which lasted, with minor changes, until the collapse of Austria-Hungary.

Benchmarking emergency department thoracotomy: Using trauma video review to generate procedural norms

IntroductionEmergency department thoracotomy (EDT) must be rapid and well-executed. Currently there are no defined benchmarks for EDT procedural milestones. We hypothesized that trauma video review (TVR) can be used to define the ‘normative EDT’ and generate procedural benchmarks. As a secondary aim, we hypothesized that data collected by TVR would have less missingness and bias than data collected by review of the Electronic Medical Record (EMR). MethodsWe used continuously recording video to review all EDTs performed at our centre during the study period. Using skin incision as start time, we defined four procedural milestones for EDT: 1. Decompression of the right chest (tube thoracostomy, finger thoracostomy, or clamshell thoracotomy with transverse sternotomy performed in conjunction with left anterolateral thoracotomy) 2. Retractor deployment 3. Pericardiotomy 4. Aortic Cross-clamp. EDTs with any milestone time ≥ 75th percentile of time or during which a milestone was omitted were identified as outliers. We compared rates of missingness in data collected by TVR and EMR using McNemar’s test. Results44 EDTs were included from the study period. Patients had a median age of 30 [IQR 25–44] and were predominantly African-American (95%) males (93%) with penetrating trauma (95%). From skin incision, median times in minutes to milestones were as follows: right chest decompression: 2.11 [IQR 0.68–2.83], retractor deployment 1.35 [IQR 0.96–1.85], pericardiotomy 2.35 [IQR 1.85–3.75], aortic cross-clamp 3.71 [IQR 2.83–5.77]. In total, 28/44 (64%) of EDTs were either high outliers for one or more benchmarks or had milestones that were omitted. For all milestones, rates of missingness for TVR data were lower than EMR data (p < 0.001). ConclusionsVideo review can be used to define normative times for the procedural milestones of EDT. Steps exceeding the 75th percentile of time were common, with over half of EDTs having at least one milestone as an outlier. Data quality is higher using TVR compared to EMR collection. Future work should seek to determine if minimizing procedural technical outliers improves patient outcomes.

Autonomous weapons systems and changing norms in international relations

AbstractAutonomous weapons systems (AWS) are emerging as key technologies of future warfare. So far, academic debate concentrates on the legal-ethical implications of AWS but these do not capture how AWS may shape norms through defining diverging standards of appropriateness in practice. In discussing AWS, the article formulates two critiques on constructivist models of norm emergence: first, constructivist approaches privilege the deliberative over the practical emergence of norms; and second, they overemphasise fundamental norms rather than also accounting for procedural norms, which we introduce in this article. Elaborating on these critiques allows us to respond to a significant gap in research: we examine how standards of procedural appropriateness emerging in the development and usage of AWS often contradict fundamental norms and public legitimacy expectations. Normative content may therefore be shaped procedurally, challenging conventional understandings of how norms are constructed and considered as relevant in International Relations. In this, we outline the contours of a research programme on the relationship of norms and AWS, arguing that AWS can have fundamental normative consequences by setting novel standards of appropriate action in international security policy.

After the Golden Age: Libel, Caricature, and the Deverbalization of Satire

It is a commonplace of literary history that satire vanishes in the middle of the eighteenth century. It is clear, however, that written and especially visual satire witnessed massive growth in the final decades of the century and throughout the Romantic era. My goal is to explain this simultaneous contraction and expansion of the satiric marketplace. Rather than dying, I argue, satire began to migrate to visual media, and especially caricature, after mid-century. The reason for this migration was the shifting procedural norms of libel law itself. Over the first half of the century, the courts developed procedures for delimiting verbal ambiguity in trials for libel that made the publication of written satire perilous. These same procedures were largely useless, however, in the prosecution of visual materials, which made at best sparing use of words—they were, as I put it, "deverbalized"—and were therefore not subject to the same rulings and interpretive procedures.

Процесуальнi правовi вiдносини в структурi предмета адмiнiстративного права

In the article, based on the analysis of constitutional requirements that determine the emergence of certain legal norms, it has been stated that modern Ukrainian administrative law can be considered as an industry that must necessarily include the rules on: 1) the power of subjects of public administration; 2) the procedure for the exercise of these powers; 3) the methods and procedure for protecting the rights of individuals from violations caused by the illegal activities of these entities. It has been noted that the majority of the rules constituting administrative law, are aimed at consolidating the powers of public administration entities and defining the order of their implementation in “non-conflict” relations with private individuals. At the same time, the model of “behavior” of the subject of public administration can be determined only through the simultaneous reference to the rules on its powers and the order of their implementation. The rules of both types are inseparable from each other. They establish a single way of implementing the powers of administration, and therefore they are material. Procedural rules of administrative law provide for the resolution of conflicts that arise between private individuals and public administration entities. Such rules are heterogeneous, marked by features, determined by the purpose of their application, and cannot be grouped into one unit. They are represented in several components of the administrative law system. Thus, the procedural rules of an administrative appeal are concentrated in the institute of administrative procedure; the rules by which a public official is brought to disciplinary responsibility are placed at the institute of public service; procedural rules for bringing to administrative responsibility are collected in the institute of administrative responsibility. It is noted that relations regulated by procedural norms form a small part of those social ties that form the subject of administrative law. Since the conflict cannot be the main form of communication between private individuals and public administration entities. The latter, through the exercise of their powers, should assist individuals in enforcing their rights or exercising their duties, while preventing the collision of private and public interests.

About the question of the essence of international economic procedural law

The paper is devoted to the essence of international economic procedural law and its subjects. It considers the mutual influence and dependence of the international legal and national legal systems, their material and procedural law norms. The analysis of the international law system gives a possibility to separate international material and international procedural law in it.The one of such branches of international law it international economic procedural law, that must be understood as the system of norms and principles that establish the order, provision form of realization of material norms of international economic law by states, international organizations and other subjects in the process of realization of international economic cooperation and also regulate the activity of international arbitral and forensic institutions in this sphere

The processing load and the dynamism of the procedural standard

The procedural charges that arise as activities of the parties in the jurisdictional process become like the original gender of the burden of proof; these are in the conceptualization of the thoughts of Goldschmidt and Carnelutti. The doctrine has treated procedural charges by basing the part of the discussion itself and is a faculty of an obligation; however, the controversy arises from the observation of the dynamics of the procedural norm and its structure, from which arises the consecutive character that generates the conduct of each one of the parties. It is precisely this dynamism that allows the party to opt for a positive behavior of the omission in which the right to defense in the trial materializes

Victims of crime with intellectual disabilities and Ireland’s adversarial trial: some ontological, procedural and attitudinal concerns

That the process of delivering evidence orally in court can prove stressful and intimidating is a point well established within mainstream victimological discourse.1 However, what is insufficiently acknowledged, particularly within the Irish academy’s literature on this topic, is the extent to which this sense of distress is heightened for victims of crime with an intellectual disability. In seeking to address this research lacuna, this paper will consider the degree to which the procedural norms of Ireland’s adversarial trial system, and the epistemic values which underpin those norms, pose certain exaggerated barriers to the realisation of justice for members of this vulnerable victim constituency. Owing to their limited cognitive and linguistic development, these victims face significant biomedical or ontological difficulties in responding to experiences of victimhood. Crucially, however, these ontological difficulties are compounded both procedurally and attitudinally by an adversarial system of trial which is predicated upon a ‘contest morphology’ and controlled by a legal community that is overwhelmingly preoccupied with mainstream accounts of victimhood.

Revisiting Section 81 of the Constitution: The Commencement Date of Legislation (Legislative Power) Distinguished from Promulgation (Legislative Process)

Section 81 of the Constitution regulates promulgation through publication as part of the legislative process (ie, a procedural norm). The provision further creates a presumption that unless the legislature explicitly determines a commencement date in an Act it enters into force upon promulgation. The commencement date of legislation is thus part of the contents of a statute (ie, a substantive norm), which must be determined by the legislature when adopting the legislation. In a number of judgments, however, the Constitutional Court espoused the idea that the commencement date is part of the legislative process instead of being part of the contents of a statute. Thus it allowed the legislature to delegate its power to determine a commencement date for legislation to the president as head of state in transgression of section 44(1)(a)(iii) of the Constitution: this provision only mandates a delegation of core legislative powers to another legislative body. The confusion is partly due to an initial tendency of the Constitutional Court to interpret constitutional provisions in isolation and partly to the unconsidered re-importation of Westminster constitutiona common law. In the Westminster system a delegation of the power to determine a later commencement date for legislation (ie, after promulgation) to the executive and/or head of state was justified in terms of the doctrine of parliamentary sovereignty. Parliamentary sovereignty, however, was abolished in 1994: such a delegation of power is no longer compromises legislative power and the separation of powers, but goes to the substance of the rule of law and legal certainty as foundational values of the constitutional state. Compatible with sections 44(1)(a)(iii), 55(2)(b)(i), 79 and 87 of the Constitution. Lately, the Constitutional Court even ruled that the power to determine a commencement date for legislation is an executive power, which is to be exercised in terms of sections 85 and 101 of the Constitution, although section 81 explicitly confers this power upon the legislature. A reconsideration of the Court’s interpretation of section 81 is therefore overdue: it not only compromises legislative power and the separation of powers, but goes to the substance of the rule of law and legal certainty as foundational values of the constitutional state.

We’re talking about semantics here

Abstract This article describes how procedural knowledge is produced in a meeting of the South African parliament’s Portfolio Committee on Transport, using concepts from Systemic Functional Linguistics (SFL) and Legitimation Code Theory (LCT). Members of this committee argue over whether or not to amend a draft committee report and in the process co-construct procedural norms for future committee meetings. Participants on both sides of the argument use axiological condensation, in which actions and ideas are associated with each other and charged with a particular moral or affective value (Maton 2014: 130) to portray their version of the procedure to be followed as morally superior to that of their opponents. They also use axiological rarefaction (Maton 2014: 130) to reinforce their positions by making apparent concessions to those on the other side of the argument. This is revealed through an analysis of the coupling of ideation and Appraisal (Martin 2000: 161) in the logogenetic unfolding of members’ talk, combined with elements of Interactional Sociolinguistics (Gumperz 1982). The analysis suggests that axiological condensation and rarefaction in this meeting reflect competing visions of what it means to be ‘pro-democracy’ in post-apartheid South Africa.

Religie, recht en de kennis van goed en kwaad

Summary It is not sufficient to take a purely formal approach to the question whether laws are just, as Witteveen does in his ten nomoi. Laws should not only meet procedural norms, but should also adhere to material and moral standards. Religion is one of the sources for morality, including our conception of justice. What are the consequences of this for the place of religion in the public sphere? What relation exists between religious and legal norms? The Dutch interpretation of the relation between state and religion is relatively flexible. Despite the constitutional separation of church and state, there is room for religion in the public sphere. Furthermore, the state can under special circumstances intervene in the private, religious sphere. But due to this flexibility, new questions arise to which the law does not provide answers. The present contribution addresses a particular issue that has been the subject of litigation: is it appropriate for civil servants to wear religious symbols, such as a headscarf, turban or yarmukle? The author argues that in these cases it is insufficient to appeal to the neutrality of the state. Neutrality is not an external feature, but it is the state of mind with which civil servants perform their functions.