Provisional Order Research Articles

ICJ’s Provisional Order of 24 May in South Africa’s Case Against Israel: An Example of How Not To Couch a Judicial Opinion?

ICJ’s Provisional Order of 24 May in South Africa’s Case Against Israel: An Example of How Not To Couch a Judicial Opinion?

Provisional order for medical treatment

Safety, like risk, is an extended concept. Just like risk, safety provokes strong emotions and licenses in the exercise of power. But. While risk threatens, safety promises. And in this power to promise what it cannot offer lies a particular danger. Recognizing this danger requires special attention. The legislation of many states assigns to this term criminal legal value that distinguishes them from punishment. Apart from punishment, protective measures are referred to in many ways around the world: "corrective and protective measures", security measures", "other criminal measures of a legal nature", "preventive measures. A summary of the analysis of the rules on protective measures around the world allows us to define them as a set of preventive measures established by criminal law and applied by the competent authorities, to the person considered dangerous due to his mental state or consumption of dangerous substances. When we act in the public space, we have a duty to respect others at least as much as we respect ourselves or to the same extent as we expect to be respected. The description of humanity as a basic element in order to put in rational terms the necessity of awareness of the aspect that the instrumentalization of the other in order to achieve one's own goals represents, mainly, the reduction of the other to the quality of object. Respect is part of our duties towards ourselves and others, what is important from the point of view of our exposure is not so much the respect we have in relation to ourselves, but respect for customers, for users, for other citizens, for the whole community. A review of legislation and psychiatric factors is called for to provide practical guidance and assistance in conducting assessments to defend against persons with mental illness. There is a participation of psychiatrists who routinely conduct assessments of competence and expertise in this complex area. The established approaches and methods will ensure the accuracy of assessing the mental state of the defendant at the time of committing the crime.

EXAMINING THE PROVISIONAL ORDER IN ARBITRATION IN DOMESTIC LAW, EXPLAINING THE NEEDS, GAPS, AND HARMS OF THE CURRENT SITUATION

Iran’s legal system is encountering numerous ambiguities and gaps due to evident and unavoidable weaknesses in the field of legislation and the existence of a dual structure of laws, which has caused inadequacies and challenges for the arbitration institution. As a result, the public desire to refer claims to arbitration has decreased. One of the most critical legal weaknesses in arbitration can be the failure to determine the independence and impartiality of the exclusive arbitrator, conflict in jurisdiction and arbitration, and the creation of an arbitration institution in the case of divorce in a faraway from the existing conditions. The current conditions of the philosophy of arbitration, the gaps about the law regarding the expert opinion issued by the arbitrator, and the legal ambiguity regarding the issuance of a provisional order and the fulfillment of the request, at the same time, many laws seem obsolete and old when it comes to arbitration. In addition to the legal system's weaknesses regarding the arbitration institution, the educational system does not work properly to improve the level of knowledge of the people and law students, especially lawyers and judges, and the judicial system deals with the content of any protest with many interventions. In this way, it has taken the strength of the arbitration institution and its votes. On the other hand, it has caused the accumulation of arbitration votes in the judicial system, while this possibility exists in most of the world's legal systems. A kind of judicial supervision of the arbitration award is foreseen in the form of the possibility of protesting the arbitration award. This is only limited attention to a part of the decision issued by the arbitrator. Also, on the other hand, courts, in many cases prevent the implementation of arbitration decisions for many reasons, and all these issues have caused the lack of development of arbitration.

Cyber Crime and Computer Misuse Provisional Order 2021 and Its Implication in South Sudan

Cyber Crime and Computer Misuse Provisional Order 2021 and Its Implication in South Sudan

Regspraak: Oordrag van onroerende eiendom kragtens ’n egskeidingsbevel tóg ’n besmette vervreemding volgens die Insolvensiewet?

The Insolvency Act defines a disposition for purposes of the act and states that a voidable disposition does not include a disposition in compliance with an order of court. Section 29 of the act defines a voidable preference for this section as a debtor’s disposition of his property made not more than six months before the sequestration of his estate. A sequestration is defined with reference to a sequestration order, which means any order of court whereby an estate is sequestrated and includes a provisional order. In the Mercantile case the marriage of the respondent and his erstwhile wife was dissolved by a divorce order of the divorce court in January 2020. Incorporated into the court order is the settlement of the parties’ respective claims regarding their matrimonial property regime. The parties had been married with a classic antenuptial contract that excluded any community of property, community of profit and loss or any accrual sharing. Notwithstanding the fact that the judgment indicates otherwise, section 7(3) of the Divorce Act could not have applied in the light of the settlement agreement. This section is applicable only in the absence of any agreement between the parties regarding the division of their assets. Only where section 7(3) applies is the court granted a wide discretion to order that such assets, or such part of the assets, of the other party as the court may deem just, must be transferred to the first-mentioned party. The final settlement of the erstwhile couple’s property regime was consequently not as a result of the court’s exercising its statutory discretion but the result of the agreement sanctioned by the court’s order. In accordance with the agreed settlement, the husband was compelled by the court order to transfer a house in Gallo Manor registered in his name as immovable property to the erstwhile wife. This property was unburdened by any registered limited real security right such as a mortgage bond. The transfer was completed in March 2020 when the property was transferred into the woman’s name in accordance with the requirements of the Deeds Registries Act 47 of 1937. Mercantile Bank attained a provisional sequestration order against the respondent in October 2021 and apparently, according to Maier-Frawley J’s judgment, indicated its intention to rely on section 29 of the Insolvency Act to claim the reversal of the transfer of the immovable property as an alleged voidable disposition of a valuable asset from the estate of the respondent as debtor to the detriment of the claimant and other creditors. It is submitted that the six-month limit forms an unsurpassable hurdle and bars the application of section 29 in this matter. In addition, any reliance on eg section 31 of the Insolvency Act that refers to collusive dealings before sequestration without an equivalent six-month time bar will be barred by the explicit definition of a disposition in the act that excludes a disposition in compliance with an order of court. It may be doubted whether it is justified to waste additional costs and the time of the high court in light of the foregoing in this matter. Where the legal position is crystalized the court is left without a contrary discretion.

UMA BREVE CRÍTICA DA TESE DO STF NA ADI 6421 À LUZ DA VISÃO SCHMITTIANA DE ADRIAN VERMEUELE E ERIC POSNER

This article will serve for pragmatic reasons, especially tocritique of JusticeLuís Roberto Barroso's thesis in Direct Action of Unconstitutionality (ADI) n. 6421, that was judged by the Federal Supreme Court on May 21, 2020, having as object the Provisional Order. Can put the problem in this question: can Minister Barroso's thesis, especially the second point, contribute to avoid the irrationalities of the action of public administrators in combating the effects of the pandemic? It is possible to answer this question from the critical position of the view according to which mechanismsof judicial revieware effective in avoiding administrative irrationalitiesor akrasia, either in normal times, or mainly, in crises and emergencies, according to Vermeule and Posner schmittian view.

The Israeli Statute on National Book Price Maintenance - A Critical Evaluation

On 31 July 2013 the Knesset adopted a statute on national book price maintenance, entitled the Protection of Literature and Writers in Israel (Provisional Order), 5773-2013. Formerly, there were neither mandatory rules nor consensual agreements concerning book price maintenance. The Statute entered into force on 6 February 2014 for a period of three years, during which its effects and impact on the book market were to be evaluated. This paper analyzes the background and reasons for adopting the Statute (part II); its object and purpose (part III); its main provisions (part IV); the consequences of its adoption (part V); subsequent developments (part VI); a critical evaluation (part VII); and final conclusions (part VIII).

Derailed Democracy and Daily Dawn: A Critical Analysis of Editorials and Columns (October 1999 – August 2002)

Pakistan inherited administrative institutions from its predecessor colonial state. These institutions were highly centralized, developed over a time period of many centuries and bequeathed intact. Contrastingly, the political and representative institutions and traditions that Pakistan inherited were moribund because they could not experience smooth sailing and hence not evolved over a reasonable time span. Unfortunately political parties could not develop democratic culture which paved the way for civil and military bureaucracy to overcome established institutional structure. By holding very strong power, the institutions of civil and military bureaucracy continued to override what they found in the form of representative. The tide could not be turned and Pakistan went through more than three decades of dictatorships. Media also faced the same fate and could not play the role of healthy criticizer for government as was due on it being the fourth pillar of state. The media can play its constructive role in democracy only if there is encouraging environment that allow them to do so. Democracy and media both suffered not being in good and strong hands during this period. This research paper is an effort to explore, evaluate and analyze the role of Dawn newspaper in responding to the fourth military coup of Oct 12, 1999. The media outlet studied under this research paper is an English daily newspaper “ Dawn ”. It is an analysis of the role of Dawn in public opinion making, developing political consciousness among Pakistani masses and playing the role of healthy and balanced opposition for military coup of Oct 12, 1999. The findings reveal that despite the friendly behavior of Musharraf government towards media, the response of Dawn to fourth martial law of country’s history was very careful and reserve unlike other newspapers of Pakistan. Dawn not only remained stick to its policy of neutrality but also analyzed the events very critically. This research paper is a qualitative analysis of the response of Pakistan’s relatively reliable and unbiased newspaper Dawn towards the fourth military coup and political developments mainly, Provisional Constitutional Order (PCO), judicial validation of the military coup and Legal Framework Order (LFO).

RE-EVALUATING THE MEANING AND EFFECT OF A WINDING UP ORDER ON THE INSOLVENT’S CONTRACTS Ellerine Brothers v McCarthy (245/13) [2014] ZASCA 46 (1 APRIL 2014)

Notably, the Insolvency Act provides that a sequestration order is any provisional or final order of court that enables the insolvent’s estate to be sequestrated by the relevant creditors (s 2). In this regard, the article explores different interpretational challenges regarding the effect of a final sequestration order on the insolvent’s lease contracts (s 37 of the Insolvency Act) and the inconsistent application of section 348 of the Companies Act 1973 to such contracts as provided in Ellerine case (par 1−15). Related challenges involving the application of the provisions of the Companies Act 1973 to the winding up of insolvent companies have been unmasked in various South African cases to date.

Calming the Waters in the West African Region: The Case of Ghana and Côte d'Ivoire

On 23 September 2017, a Special Chamber of the International Tribunal for the Law of the Sea (ITLOS) unanimously fixed the course of the maritime boundary between Ghana and Côte d'Ivoire and, thus, ended a long-standing dispute between the two West African neighbours. In addition to maritime delimitation, the legal reasoning and conclusions drawn in the judgment – especially in view of the Special Chamber's Provisional Measures Order of 25 April 2017 – are significant, in that they shed light on states' rights and obligations under the United Nations Convention on the Law of the Sea (UNCLOS) in respect of undelimited maritime areas, and also on the potential to respond meaningfully to unilateral resource-related activities in disputed waters through recourse to provisional measures of protection. The present article examines the key aspects of the Special Chamber's ruling and highlights some issues of practical significance for the future conduct of unilateral petroleum activities in disputed maritime areas.

Calming the Waters in the West African Region: The Ghana/CCte D'Ivoire Case

On 23 September 2017, a Special Chamber of the International Tribunal for the Law of the Sea (ITLOS) unanimously fixed the course of the maritime boundary between Ghana and Cote d'Ivoire and, thus, ended a longstanding dispute between the two West African neighbours. In addition to maritime delimitation, the legal reasoning and conclusions drawn in the judgment – especially in view of the Special Chamber’s Provisional Measures Order of 25 April 2017 – are significant, in that they shed light on States’ rights and obligations under the United Nations Convention on the Law of the Sea (UNCLOS) in respect of undelimited maritime areas, and also on the potential to respond meaningfully to unilateral resource-related activities in disputed waters through recourse to provisional measures of protection. The present paper examines the key aspects of the Special Chamber’s ruling and highlights some issues of practical significance for the future conduct of unilateral petroleum activities in disputed maritime areas.

Recognition and Enforcement of Foreign Provisional Orders in the United States: Toward a Practical Solution

Currently, the United States law lacks a coherent mechanism for providing recognition to, and allowing enforcement of, provisional orders issued by a foreign court. This paper argues for establishing a system for recognition and enforcement of foreign provisional orders in the United States. Such a system would confer three main benefits: (1) enhanced efficiency of transnational litigation in the U.S. courts; (2) appropriate allocation of judicial resource between U.S. and foreign courts that would promote both constitutional rights and judicial efficiency, and; (3) creation of the U.S.-led ecosystem of private international law. This paper then examines the three possible paths of establishing the system of foreign provisional order recognition: judicial, legislative, and treaty-based. Although all three paths are viable, this paper argues that the treaty-based option provides the maximum flexibility necessary to reap the triple benefits of having a legal mechanism for recognition and enforcement of foreign provisional orders.

Die Effek van 'n Voorlopige Sekwestrasiebevel – Word my Reg om 'n Lid van die Parlement te wees ingeperk?

The question asked in this article is inspired by the recent case of Mr Julius Malema. Why the matter is so important and has enjoyed so much attention, is the fact that it was widely suggested that a final order of sequestration would affect Mr Malema's political career in that it would not be possible for him to continue to serve as Member of Parliament. The question that immediately comes to the fore is whether the provisional order of sequestration would not already result in such an outcome. As stipulated by the Constitution of the Republic of South Africa, 1996, an unrehabilitated insolvent may not become a member of the National Assembly, National Council of Provinces, or a Provincial Legislator. Do the words "unrehabilitated insolvent" also include a person who is under provisional sequestration? The purpose of this article is to investigate the effect of a provisional order of sequestration and the focus will be on the ability of an insolvent to act as a Member of Parliament. The legal position in the South African law will be compared with the legal position in the United States of America – which is, with regard to the insolvency law, recognized as a very successful, modern, progressive and dynamic legal system. Voluminous changes to the American bankruptcy law system, to adapt to current practical situations and the current economic climate, have been effected as recently as in 2005. Brief reference will also be made to the legal position in the United Kingdom, due to South Africa's historical ties with the UK and the reliance in the past on the English insolvency law and the Bankruptcy Act, 1986.

Unilateral Diplomatic Assurances as an Alternative to Provisional Measures

During litigation on the international plane, states sometimes will issue assurances either to the other litigant or to the international court directly. This article explores how those assurances interact with applications for provisional measures. The practice of courts varies with regard to how to react to these assurances, though the usual approach is that assurances issued to another state or individual are generally non-binding, while assurances issued to the court directly are binding. At the same time, litigants can apply to the court for provisional measures to prevent actions that would disturb the dispute. When the assurances are considered non-binding, they are treated as questions of fact and can be assessed for credibility and reliability, as a part of the provisional measures analysis. But when the assurances are considered binding, they are treated as questions of law, and the undertaken legal obligation disposes of the request for a provisional measures order. This article will examine the practices of the International Court of Justice and the European Court of Human Rights on this issue, identifying where their practices diverge and converge, and recommending that the dual nature of assurances, as both factual and legal, be considered in assessing their value.

Should 'Candidatus Phytoplasma' be retained within the order Acholeplasmatales?

Phytoplasmas are a diverse but phylogenetically coherent group of cell-wall-less bacteria affiliated with the class Mollicutes. Due to difficulties in establishing axenic culture, phytoplasmas were assigned to a provisional genus, 'Candidatus Phytoplasma', and the genus was embraced within the order Acholeplasmatales. However, phytoplasmas differ significantly from species of the genus Acholeplasma in their habitat specificities, modes of life, metabolic capabilities, genomic architectures, and phylogenetic positions. This communication describes the unique ecological, nutritional, biochemical, genomic and phylogenetic properties that distinguish phytoplasmas from species of the genus Acholeplasma and all other taxa in the class Mollicutes. Since such distinguishing properties of the phytoplasmas are not referable to the descriptions of the order Acholeplasmatales and of all other existing orders, namely Mycoplasmatales, Entomoplasmatales and Anaeroplasmatales, this communication raises the question of whether 'Candidatus Phytoplasma' should be retained in the order Acholeplasmatales or whether a novel provisional order and family should be created to accommodate the genus 'Ca. Phytoplasma'.

Application of a new multi criteria decision making method for warehouse location problem

Proper warehouse location selection is one of the most important challenges in the optimisation process of a logistics system and many quantitative and qualitative factors affect it. Therefore, through this paper a new balancing and ranking method with an interval data approach is presented. This method involves a three-step procedure to derive an overall complete final order of warehouses previously selected as possible locations. The procedure involves defining an outranking matrix based on criteria values for all available warehouse locations while taking into account the frequency of superiority of one location over others. Ordering of warehouse locations were performed based on information from an advantages-disadvantages table, distance travelled after final balancing, and the provisional order of locations. This provisional order of locations, referred to as triangularisation. In order to demonstrate effectiveness of the method it was applied to a case study and results were evaluated and verified.

The Protection of Communications between States and Their Counsel in International Dispute Settlement

This case note concerns the International Court of Justice's March 2014 provisional measures order in Questions Relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v Australia), a case that raises novel issues regarding the integrity of international dispute settlement.

Managing without guards in a Brazilian police lockup

Brazilian prisons are typically crowded and poorly resourced, yet at the same time may be active places. Of particular interest to the sociology of prisons is institutional reliance on inmate collaboration and self-ordering, not only to maintain prison routines, but, in the most low-staffed prisons, security and prisoner conduct as well. This article explores the roles played by inmates in running one such penal institution, a men's police lockup in Rio de Janeiro. At the time of research the lockup had over 450 prisoners, but just five officers. Both on and off the wings inmates performed janitorial, clerical, and guard-like duties, mostly under the supervision not of officers but other prisoners. The lockup appeared to be operating under a relatively stable, if de facto and provisional order, premised on common needs and shared beliefs, and maintained by a hierarchy of prisoner as well as officer authority.

A New Balancing and Ranking Method based on Hesitant Fuzzy Sets for Solving Decision-making Problems under Uncertainty

The purpose of this paper is to extend a new balancing and ranking method to handle uncertainty for a multiple attribute analysis under a hesitant fuzzy environment. The presented hesitant fuzzy balancing and ranking (HF-BR) method does not require attributes’ weights through the process of multiple attribute decision making (MADM) under hesitant conditions. For the rating of possible alternatives, firstly, they are defined as hesitant fuzzy terms and then converted into hesitant fuzzy sets. Second, an outranking matrix indicates that a possible alternative overcomes the other alternatives regarding to each chosen attribute. Third, the outranking matrix is triangularized; this means that we prepare provisional order of possible alternatives or implicit preordering under hesitant conditions. Eventually, the empirical order of alternatives goes through variant operations of balancing and screening that needs continuous application of a balancing axiom to the advantages–disadvantages table. It links incompatible attributes with pair-wise comparisons of the possible alternatives for the multiple attribute analysis. Finally, we present an application example for the supplier selection to show the applicability and feasibility of the proposed HF-BR method in the hesitant fuzzy setting.

A multi-stage decision-making process for multiple attributes analysis under an interval-valued fuzzy environment

This paper presents a multi-stage decision-making process for multiple attributes analysis under an interval-valued fuzzy environment. The proposed method does not demand weights of conflicting attributes through the decision-making process under uncertainty. The performance ratings of potential alternatives with respect to selected conflicting attributes are first described by linguistic terms and then are represented as interval-valued triangular fuzzy numbers. Second, an outranking matrix is proposed to denote the frequency with which one potential alternative dominates all the other alternatives according to each selected attribute. Consequently, the outranking matrix is triangularized in order to provide an implicit preordering or provisional order of potential alternatives under uncertainty. Finally, the tentative order of alternatives undergoes different operations of the screening and balancing that requires sequential application of a balancing principle to the advantages–disadvantages table. It hybridizes the conflicting attributes with the pair-wise comparisons of the potential alternatives for the multiple attributes analysis. Furthermore, an application example is used for the decision-making in a selection problem to illustrate the feasibility and applicability of proposed method in an interval-valued fuzzy environment.