Question Of Jurisdiction Research Articles

Deconstructing Turkcell V Iran: The First Investment Treaty Claim against Iran

Once an arbitral tribunal is constituted, the preliminary issue to be decided is the question of jurisdiction and admissibility of the claim. At the pre-merit stage, the tribunal determines whether it has jurisdiction over the disputes to proceed with the substantive issues. In investment arbitration, the jurisdictional requirements are contained in bilateral investment treaties (BITs) and the 1966 Convention on the Settlement of Investment Disputes between States and Nationals of other States (ICSID Convention) and municipal laws. This article critically analyses the first BIT claim against Iran by reconstructing the Turkcell arbitration case. The Turkcell case concerned complex questions of Iranian and international law concerning the jurisdiction of an arbitral tribunal over investment activities. The Turkcell case highlights the important issue of interpretation of treaty provisions concerning the definition of investment (ratione materiae) and investors (ratione personae).

State and Fiqh: Examining the Legal Status of Divorce in Verstek Decision Number 2939/Pdt.G/2023/PA.Mdn

This research is grounded in Decision Number: 2939/Pdt.G/2023, wherein the presiding magistrate rendered a verdict of Verstek in his consideration of the case. In such cases, the decision is rendered by the court in the absence of either the defendant or their legal representative. The validity of a verstek verdict in the context of the legitimacy of a marriage may be contingent upon the applicable legislation within the jurisdiction in question; thus, this investigation will consider both positive law and Islamic law. The objective of this article is to undertake a critical analysis of the decision rendered in Decision Number: 2939/Pdt.G/2023, which pertains to the use of a verstek decision to terminate a marriage due to childlessness, followed by disputes and quarrels. This research is a normative legal study with a case-based approach. The principal data source is derived from court decisions in the field of marriage law. The analysis reveals that, in Decision Number: 2939/Pdt.G/2023, a verdict of divorce by verstek is considered valid if the stipulated procedures have been followed correctly and the party who is required to be present or provide a defence does not do so without a valid reason. Islamic law also establishes principles of justice and protection of individual rights, including in the marriage process. Accordingly, the legitimacy of a marriage concluded through a verstek verdict may be contingent upon the interpretation of Islamic schools of thought and the legal principles that are embraced. Likewise, in the context of marriage law in Indonesia, a verstek decision in a verstek divorce case can be recognized as valid if it has fulfilled the requirements stipulated in the law. Thus, to determine whether a verstek decision in a marriage is valid or not, it is necessary to consider the applicable legal context, both in terms of civil law and in terms of Islamic law (fiqh) or the applicable marriage law.

Statutory leave for early pregnancy loss: A comparative study

Pregnancy loss prior to fetal viability is a common experience for women worldwide – 1 in 4 pregnancies end in miscarriage. Increased recognition of the impact of such loss has put the issue of statutory leave in this context on the policy and legislative agenda in an increasing number of jurisdictions. This article seeks to help inform these debates by presenting the findings of a comparative study of jurisdictions which have introduced such leave. From this, the article identifies two main approaches: leave based on the sick leave model and leave based on the compassionate leave model. The article argues that both models have strengths and limitations. What works in each individual jurisdiction will depend, among other factors, on the way in which the jurisdiction in question addresses the issue of leave more broadly. However, regardless of the model adopted, the article argues that some form of statutory leave for miscarriage and other pregnancy loss should be introduced on the basis that such leave serves to reinforce the equality agenda, provides a chance for care and recovery following pregnancy loss, and serves an important expressive and educative goal in ensuring better understanding of the impact of pregnancy loss on those who experience such loss.

Division of Powers of Public Authorities in Modern Conditions

In the context of the implementation of the provisions of the Constitution of the Russian Federation regarding the formation of a unified system of public power, the issue of improving the delimitation of powers of public authorities remains relevant. Significant amount of problems has been accumulated over the course of more than twenty-five years. This fact has an impact on the sustainability of regional budgets. The author of the article is considering the authority of regional government bodies in questions of joint jurisdiction of the Russian Federation and its constituent entities. The purpose of the work is to develop recommendations for improving the division of powers of public authorities and financial support this process from the position of increasing the sustainability budgets of the constituent entities of the Russian Federation. In the course of the work, based on scientific methods such as institutional, retrospective and comparative analyses, it was concluded that there are problems in the mechanism for delimiting regional powers that impede the increase in the sustainability of regional budgets. The main results of the study include suggestions for the harmonization of budget legislation and legislation in the field of delimitation of powers from the position of expanding the rights of regions to participate in the implementation of non-transferred powers, regulation of the process of introducing new powers, inventory count of regional powers established by subordinate legislation or bylaws, introduction of the practice of financial support for certain regional powers in cases and to the extent of receipt of certain non-tax revenues and the development of debt financing instruments for powers, as well as for improving the practice of financial support for delegated powers. The prepared recommendations may be useful when conducting the inventory count of regional powers from the standpoint of increasing the sustainability of regional budgets; introducing a reasonable assessment of the resource provision for new powers proposed for the implementation; shifting the emphasis from the subordinate or by-law regulation of regional powers towards strengthening their legislative regulation.

Constitution and Jurisdiction in Neal Stephenson’s Speculative Fiction

A common feature of Neal Stephenson’s speculative fiction is the richly imagined political communities inhabited by his characters. Geographically defined constitutional states are reimagined, often with a focus on associations based on shared social identity or beliefs, as opposed to nation-state citizenship. Stephenson’s works offer an imaginative space for exploring possibilities of alternative political communities, and questions of constitution and jurisdiction. Modern territorially sovereign nation-states have presented constitutional scholars with a fixed framework. People sharing physical space constitute a political association stemming from a moment of legal constitution. Thus constituted, the nation-state authorises governmental entities to oversee the populace within the shared geographical space. Stephenson’s rich imagination offers constitutional scholarship an imaginary for exploring alternative conceptualisations of constitution and jurisdiction. This article proposes that recovery of medieval conceptualisations of overlapping networked jurisdictions might aid in sensemaking of models of political communities beyond the territorially sovereign nation-state.

Ripple effect: the SEC’s major questions doctrine problem

Objective: to elaborate a new standard for assessing the level of decentralization of cryptoassets in the USA.Methods: dialectical approach to cognition of social phenomena, allowing to analyze them in historical development and functioning in the context of the totality of objective and subjective factors, which predetermined the following research methods: formal-logical and sociological.Results: Crypto assets and blockchain technology have the potential to create unprecedented equitable access to financial institutions. Despite this potential, there is a robust debate regarding federal agencies' jurisdiction over the novel asset class. Without clear statutory guidelines, federal agencies have been forced to resolve this debate through the rulemaking process. However, agency rules regarding jurisdiction over crypto assets could be scrutinized by a reviewing court under the major questions doctrine. Once highly deferential to agency rules, the U.S. Supreme Court in recent terms has repeatedly struck down agency rules when an agency claims an unheralded power to regulate an issue of deep economic and political significance. The U.S. Securities and Exchange Commission (SEC) arguably claims such a power by interpreting most crypto assets to be "investment contracts" and thus under SEC jurisdiction. But although a decision on major questions doctrine grounds in the high-profile case SEC v. Ripple Labs, Inc. could help clarify how we classify crypto assets, it leaves many jurisdictional questions unanswered and could complicate the application of the SEC's disclosure regime to risky crypto asset offerings.Scientific novelty: This Note argues that Congress should pass the Lummis-Gillibrand Responsible Financial Innovation Act to create joint jurisdiction between the SEC and the Commodities Futures Trading Commission over most crypto asset offerings. This may help to balance consumer protection and innovation at the frontier of financial innovation. The author also endorses a new standard to evaluate whether a crypto asset is sufficiently decentralized to further clarify the SEC's role in regulating crypto asset offerings.Practical significance: the main provisions and conclusions of the article can be used in scientific, pedagogical and law enforcement activities when considering the issues related to the activity of the U.S. Securities and Exchange Commission.

Balancing Peace and Justice: Challenges and Strategies in the Jurisdiction of the International Criminal Court

The creation of the International Criminal Court (ICC) has successfully pushed for the prosecution of global crimes. This is a significant development in the area of international law and will have a significant effect on the worlds peaceful advancement. In order to advance the justice of the international order, it is impossible to ignore the jurisdiction question, which has always been the ICCs central concern. As long as the nation submitting the case is the nation where the crime was committed or the nation of nationality of the criminal suspect, it can fall under the purview of the ICCs authority. The ICC has heard a number of international criminal cases since its founding, including those in Sudans Darfur. This essay examines the conflict between peace and justice in the ICC, analyzes it, identifies the limitations of the real implementation process, and finally makes pertinent recommendations. Its main concern is the jurisdiction of the ICC.

Narrative and Story-telling in Darwall & Anor v Dartmoor National Park Authority

Abstract Darwall & Anor v Dartmoor National Park Authority [2023] EWHC 35 (Ch) is a case framed by a particular narrative about national parks. This narrative exists separately from the explicit terms of the National Parks and Access to the Countryside Act 1949. Whilst a case comment about narrative seems unconventional, it is fundamental to understanding this case. This is because narrative shapes the legal questions asked in the case and so understanding narrative is essential to understanding the case itself. This comment places Darwall in its legal historical context, linking it to two legal questions from the case: the question of jurisdiction and the discussion of public access as a means of dispropriation. This illustrates that the legal questions in Darwall are asked as much because of the narrative that frames them, as they are of their explicit grounding in the legislation.

The International Criminal Court: Whether the Crime of Aggression in Ukraine

Summary Since the establishment of the International Criminal Court (ICC) almost two decades ago, the crime of aggression has not been tested. The Russian invasion of Ukraine seems to provide a fitting opportunity. However, the ICC lacks jurisdiction over the crime of aggression in the current Russian/Ukrainian war. Nevertheless, 24 February 2022 marked the beginning of a renewed attack, as Ukraine witnessed unimaginable proportions of human rights violations, deaths, sufferings, and displacements due to the Russian invasion. While it is incontrovertible that the crime of aggression has been committed by President Vladimir Putin of Russia against Ukraine, and the ICC has begun the investigation of crimes against humanity and war crimes, jurisdictional questions looms. The ICC is empowered to investigate, prosecute, and punish individuals for international crimes, close impunity gaps, and ensure accountability for the ongoing heinous crimes being committed in Ukraine. How can justice be served specifically to Ukrainian victims and generally to the international community for the atrocities being committed and for the crime of aggression? Since the ICC lacks jurisdiction, would the setting up of a special tribunal or hybrid court be better to deal with the situation? How would such special tribunal deal with the issues of immunity and the practicality of investigations and prosecution? This paper discusses these questions and argues that beyond the referrals to the ICC made by over forty states, it may be imperative for the referring states to utilise the universal jurisdiction principle to investigate and prosecute the crime of aggression.

An Innovation in the Test for Material Jurisdiction under Certain Compromissory Clauses

Abstract To decide on the question of material jurisdiction under a compromissory clause, the World Court has at times interpreted treaties provisionally, seeing whether these could reasonably, though not per se correctly, be read so as to apply to acts of which an applicant complains. Other times it has interpreted treaties definitively, to assess whether the respondent actually has the obligations it allegedly violated. The former method may be criticised for not basing jurisdiction in consent; the latter for prejudging the merits. This article shows that the Court has nevertheless made the latter its standard approach. But to avoid prejudging the merits, it will only use definitive interpretations to resolve those preliminary objections, or aspects of an objection, which it perceives as raising issues relevant to its material jurisdiction, as opposed to the merits. The article argues this innovation creates uncertainty for the parties and could be a misuse of the definitive approach.

The ICJ judgment on Nicaragua v Colombia (2022): applying an established jurisdictional test or a problematic invention?

Abstract In April 2022, the ICJ pronounced its judgments on the merits in Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v Colombia). While the judgment makes interesting contributions to the law of the sea jurisprudence, the Court’s problematic finding on jurisdiction ratione temporis is the subject of this paper. Applying what it refers to as ‘continuity’ and ‘connexity’ criteria, it found that Colombia’s withdrawal from the Pact of Bogotá would not prevent it from considering facts submitted by Nicaragua which arose after the Pact ceased to be in force for Colombia. An in-depth analysis of the jurisprudence the judgment referred to reveals that the Court was building on convoluted cases, some of which have conflated questions of jurisdiction and admissibility. Based on the Court’s jurisprudence, this paper argues for a more systematic approach to dealing with preliminary issues arising from new claims and submissions.

Might contain traces of Lotus: The limits of exclusive flag state jurisdiction in the Norstar and the Enrica Lexie cases

AbstractThe article scrutinizes some of the surprising commonalities in the reasonings of two recent decisions by two separate judicial forums: the ITLOS’s judgment in the M/V Norstar case and the award of an ad hoc arbitral tribunal in the Enrica Lexie case. One key connection between the two decisions is their heavy reliance on the Lotus judgment of the PCIJ. Another similarity between the two disputes is that both of them revolve around the concept of exclusive flag state jurisdiction under UNCLOS Article 92(1) and adjacent questions of jurisdiction on the high seas. The article is going to subject both decisions to criticism and argue that some of the more problematic positions adopted by the tribunals in both cases amount to no more than obiter dicta – thus establishing an additional parallel with Lotus, which also received heavy criticism for its controversial obiter dictum. The two tribunals’ new-found interest in Lotus also provides an opportunity to discuss the utility and legal weight of Lotus as a precedent in the face of a century of developments in treaty law and judicial practice. In this sense, this article builds on and attempts to continue the recent trend in scholarship advocating for a renewed appreciation of the Lotus case against the backdrop of decades of criticism against it. Accordingly, the article aims to facilitate a better understanding of all three disputes, the principles they applied, and the dynamics of international adjudication and international law in general.

THE ROLE OF ANTÔNIO AUGUSTO CANÇADO TRINDADE AS AN INTERNATIONAL JUDGE - DOI: 10.12818/P.0304-2340.2022v81p381

Antônio Augusto Cançado Trindade lived a life dedicated to the theory and practice of international law. This paper briefly presents an overview of his contributions as a Legal Advisor to the Brazilian Ministry of Foreign Affairs and as an academic on international law, focusing on the contributions of his work as an international Judge at the Inter-American Court of Human Rights and at the International Court of Justice to the advancement of discussions on international law of human rights pertaining to questions of jurisdiction, procedure, substance and to procedural crossfertilisation between international courts and tribunals.

The Mediterranean Sea Between Legend and Crime: The Tricky Question of Jurisdiction for Mediterranean States

Abstract How have Mediterranean States been combating unlawful activities carried out on the high seas? Can international rules on enforcement and adjudicative jurisdiction help coastal States to meet this challenge? This contribution attempts to answer these questions with reference to the jurisprudence of the supreme courts of Italy and Spain. The analysis identifies a common attempt by both courts to expand the jurisdiction of domestic tribunals in cases of smuggling of migrants and trafficking of drugs by adopting expansive interpretations of domestic and international law rules.

Sınırlar Karıştığında: Geç Osmanlı İmparatorluğu’nda Köy Ortak Ormanlarının Tahdidi

In 16 January 1905 the village headman of the Kaymarofça (Priştine) and two members of the village councile wrote a petition to Inspectorship of Rumeli Province on behalf of village people, and lodged a complaint with neighbouring villagers of Kraçiçe (Prezrin) along of their encroachment to the village coppice. This was an usual plaint at first blush, however the actual situation was more complex for the case was intervened two different offices: the courts and local councils. In such a context, I propose that to whom belongs village forests and how their borders define in case of controversy constituted main tensions between neighbouring villages. In this paper, on the basis of a conflict story, I will first discuss the problem of jurisdictional question in the Ottoman Empire concerning village forests. Secondly, I will scrutinize the process of trial and demarcation, by focusing on their actors, methods and potential outcomes.

Judicial Review: Questions of Jurisdiction and Appropriate Forum

Judicial Review: Questions of Jurisdiction and Appropriate Forum

“A Softness, Slyness and Low Cunning of the Mulatto”: Mother Theresa Maxis Duchemin, Gender, and the Schism of the Sisters, Servants of the Immaculate Heart of Mary

ABSTRACT This article examines the relationships between Catholic women religious and the bishops in the mid-nineteenth century, exploring the questions of authority and jurisdiction over women’s religious organizations that spread across various dioceses. To demonstrate this, a case study is presented of the Sisters, Servants of the Immaculate Heart of Mary (the IHMs), whose members were located in Michigan and Pennsylvania. It explores how the expansion of the IHMs caused a gendered crisis of authority among local bishops. This study occurs within a larger history of questions of jurisdiction over women’s religious organizations and racial bias within the Catholic Church in the nineteenth century. It then analyzes how the bishops used the racial identity of Mother Theresa Maxis Duchemin, the congregation’s original superior, as a weapon to regain control over the IHMs.

Gelasius and the Ostrogoths: jurisdiction and religious community in late fifth‐century Italy

This essay examines the relationship between Gelasius, bishop of Rome from 492 to 496, and the Ostrogothic court, which occasioned several jurisdictional questions: the Roman church’s authority to adjudicate controversies within suburbicarian Italy, the proper venue to judge disputes involving clerics, and the appropriate involvement of the Ostrogoths in resolving these questions. Importantly, Gelasius did not identify the Ostrogoths as Arian heretics; but neither did he view their religion as equivalent to his own. This ambiguity, together with Theoderic’s stated aim of preserving traditional Roman law, provided Gelasius with rhetorical ammunition as he attempted to navigate the vexing jurisdictional landscape that characterized Ostrogothic Italy.

Mass claims in international investment arbitration

Following the economic crisis in Argentina international investment tribunals faced a new challenge: mass claims characterized with multiple claimants bringing the significant amount of homogeneous investment protection claims against the host state. Neither the 1965 Convention on the Settlement of Investment Disputes Between States and Nationals of Other States, nor applicable bilateral investment treaties cover the tribunals’ power to resolve mass claims. They are silent on crucial questions of jurisdiction and consent and do not address important procedural issues either. In these circumstances arbitral tribunals face the inevitablegap-filling process, which boils down to the critically important question of legal nature of mass claims. If mass claims are nothing more than a mere variety of “ordinary” claims, than the issues of special or “secondary” consent are irrelevant, since the general consent for arbitration will suffice for the tribunal to find itself competent to resolve the dispute. By contrast, if mass claims are different in their legal nature from “ordinary” bi- or multiparty arbitration, they cannot “fit” into the scope of parties’ general consent. In controversial Abaclat decision the majority ruled that the questions of tribunal’s powers to decide on mass claim brought by Italian investors against Argentina pertain to the sphere of admissibility rather than jurisdiction. This analysis was not accepted by dissenting arbitrator G. Abi-Saab. Interestingly, other multi-party “Argentinian” awards followed the line of argument which significantly differed from both the majority opinion in Abaclat and G. Abi-Saab’s dissent. This only highlights the controversial nature of mass claims in international investment arbitration. This article is dedicated to analysis of jurisdictional issues raised in the course of “Argentinian” arbitrations. Since this analysis is strongly intertwined with two other systems of resolution of mass claims, namely American class arbitration and public international law mechanisms dealing with the compensations for states’ international wrongdoings, these two mechanisms are also explored to provide better context and understanding.

Judicial Interpretation in Resolving the Conflict on Jurisdiction between the Central Government and the Federating Units

The tension between the central government and the federating units has always been an intractable issue between the forces of centralization and decentralization in a federalism with the judiciary at the intersection of the conflict. Therefore, this study examines judicial interpretation in resolving the conflict on jurisdiction between the central government and the federating units. It applies Henri Lefebvre’s theory of space, Richard Ford’s analysis of jurisdiction, Benjamin Cardozo’s and Oliver Wendell Holmes’s psychology of judging to judicial interpretation in resolving the conflict on jurisdiction between the central government and the federating units. It finds that the justices on the majority and the minority who interpret the constitution to resolve questions of jurisdiction between the central government and the federating units often play politics of space hidden within the interstices of legal rules without being conscious of their psychological biases. Hence, it argues that instead of playing politics of space, what the justices should do is to apply the principles in Keynesian federalism bolstered by the rule of presumption. With this, the influence of politics borne of psychological biases can be reduced while both the central government and the federating units are given equal chances. In conclusion, it recommends that whenever the judges are called upon to resolve the conflict between the central government and the federating units, the principle in Keynesian federalism with the rule of presumption should be applied.