Recent Case Law Research Articles

“And Justice for All”: Modifying the Ninth Circuit’s <em>Feres</em> Doctrine Test to Reduce Service Member Inequity

In 1946, the Federal Tort Claims Act (FTCA) waived what was once absolute: federal sovereign immunity for government-caused torts. Nevertheless, the Supreme Court’s Feres doctrine declines to extend the FTCA’s immunity waiver to certain tort claims of military service members. The doctrine precludes petitioners who have suffered an injury incident to their military service from bringing a negligence claim against the government. Its origins are not without controversy and modern courts often have trouble applying it in an equitable manner. In 2021, for example, the U.S. Navy negligently contaminated the drinking water supply of thousands of civilians and service members on the island of Oahu. Although recent case law applying the FTCA to drinking water-related torts indicates a willingness to allow some of these claims to proceed, that willingness has not been extended to service members due to the Feres doctrine. This Note argues that the Feres doctrine is inequitable because it excludes service members’ injuries in an overbroad manner. Further, this Note proposes a modified Feres test based on the Ninth Circuit’s interpretation of the doctrine to promote equity and applies it to the Navy’s actions on Oahu.

EVOLUTIVE INTERPRETATION WITH REFERENCE TO RECENT EUROPEAN COURT OF HUMAN RIGHTS CLIMATE CHANGE CASE LAW

Evolutive interpretation is one of the most important principles of interpretation that has enabled the Court to interpret the Convention in the light of present-day conditions, expanding the scope of protection under the Convention, and at the same time, raising the question of the permissible limits of interpretation. In the recent climate change case law, the Court has found a violation due to the failure of the respondent state to develop and implement a normative framework that would mitigate the consequences of climate change. The Court has applied evolutive interpretation considering that the Convention does not guarantee the right to a healthy environment or a similar right. The authors use the normative and casuistic methods to determine whether the Court’s recent climate change case law provides clearer parameters for the application of the evolutive interpretation. The research results indicate that judicial case law is not coherent with regard to these conditions, and consequently, the limits of the Convention’s evolutive potential remain unclear.

Buying what matters: towards a value model allowing to implement policy preference in public procurement

Purpose The purpose of this study is to promote value as a core concept enabling innovative and socially responsible procurement. It suggests how organisations should analyse value from their own perspective and from that of their stakeholders and users, to keep pace with the expectations of today's society. Design/methodology/approach The study examines developments in recent legislation and case law of the EU as well as observed good practice. It builds on these bases and on economic and behavioural approaches to define value and embed it in the awarding framework of public contracts. Findings While traditional “prescriptive” approaches face legality and efficiency challenges as buyers must take into account societal considerations, this change of perspective allows to pursue policies in a more transparent and defendable manner. The study proposes a simple value model as a framework for such analysis. Research limitations/implications The study opens a field for further qualitative and comparative research, measuring or determining how active implementation of value approaches improve efficiency and/or lead to better fulfilment of procurement and policy objectives. Practical implications Reasoning in terms of value can be further developed into enabling measures promoting sustainable sourcing, support of local and small businesses and bonds with communities. Social implications An explicit introduction of value as a procurement enabler should help organisations to implement their sustainability policies and to better use public procurement as a strategic instrument, and even as a driver of social innovation. Originality/value In spite of the pressing practical challenges related to value in public procurement, literature on this topic is scarce and has mostly tackled the problematics from a purely legal or theoretical point of view. This paper tends to address it from different and more practical perspectives, such as contribution of procurement to governance; linking public procurement and public policy; meaning of innovation from transaction (market) perspective and its implications for tendering.

The Carrier’s Defence to Liability for Delay under the Montreal Convention and EU Regulation 261/2004

This paper analyses the specific defence to liability for delay available to carriers, comparing its features under the Montreal Convention (MC99) and EU Regulation 261/2004 (Regulation 261). The relationship between these legal instruments has never been an easy one, whereas recent case law of the Court of Justice of the European Union on the socalled ‘extraordinary circumstances defence’ invites to explore similarities and differences between the international and the European approaches. The scope of application of the defence is clearer in Regulation 261 than in MC99. The former will only affect cancellations and delays – not cases of denied boarding, and its impact remains limited to the lump-sum compensation set out in Article 7 of Regulation 261. In turn, MC99 covers delays, but it is uncertain whether it also encompasses cancellations and situations of denied boarding – particularly when the passengers concerned are provided alternate transportation. Moreover, the defence laid down in MC99 applies to damage occasioned by delay, but the definition of ‘damage’ is left to domestic law. This situation gives rise to diverging decisions by national courts. Regarding the conceptualization of the defence, the wording of the relevant provisions might lead to think that both instruments share a regime of liability for presumed culpability. However, the extraordinary circumstances defence is much more complex. As a consequence, there is no alignment between MC99 and Regulation 261, although points of convergence are highlighted.

Recognising Palestinian Refugees: Applicability of Article 1D of the 1951 Refugee Convention in Turkey

Abstract The special international regime for Palestinian refugees established by Article 1D of the 1951 Refugee Convention has yet to receive sufficient attention in Turkish asylum literature. Although Turkish law has incorporated Article 1D, neither scholars nor practitioners have pushed for its implementation. This research contends that Palestinians should be recognised as refugees in Turkey. Despite Turkey only granting refugee status to individuals from Europe due to the Convention’s geographical limitation, this article argues that an exception should be made for Palestinians. To this end, this article addresses how Article 1D of the 1951 Refugee Convention applies in Turkey by focusing on the interplay between the Convention and Turkish laws and regulations, as well as considering recent case law in other jurisdictions, particularly in Europe. By doing so, it aims to demonstrate that it is possible, though challenging, to improve the legal status of Palestinians in Turkey, mainly through strategic litigation.

The Shifting Landscape of Judicial Independence Criteria Under the Preliminary Reference Procedure: A Comment on the CJEU’s Recent Case Law and the Trajectory of Article 267 TFEU

AbstractThe preliminary reference procedure forms the foundation of judge-to-judge dialogue in the EU, which has been imperative to the inclusion of member state courts in the Union’s judicial system. In response to the Union’s ever-growing rule of law problem, the CJEU strengthened judicial independence criteria to fortify the Article 2 TEU value of the rule of law. Now, it seems the CJEU’s fight to save judicial independence is spilling over into the preliminary reference mechanism as it overhauls its judicial independence standards under Article 267 TFEU. In particular, the CJEU has chosen to treat traditional and non-traditional courts in a divergent way and introduced significant reliance on judicial decisions emanating from outside the immediate CJEU court structure; this multi-dimensional change to the operation of the preliminary reference mechanism has far-reaching consequences. As this article highlights, the most notable consequences are to the uniform application of EU law, the principle of subsidiarity and autonomy of EU law. Perhaps the most important point raised is the effect of the new limitation on Article 267 TFEU references on EU citizens and our right to access the ‘natural judge’ (the CJEU) in matters concerning EU law.

Czech Republic: Czech private foundations and trusts in the light of recent discussions and case law

Abstract This article aims to summarize, in the context of recent court decisions (case law), the development of the views and concepts with which private foundations and trusts have been viewed in Czech law over the last 10 years. In this respect, the authors believe that Czech law can serve as a kind of (albeit imperfect) laboratory for exploring the general difficulties encountered by traditional civil law jurisdictions in introducing these wealth management instruments institutes into traditional civil law systems.

How to play nicely: The current law of party wall surveyors’ duties , and what to do with it

This paper aims to set out the current state of the law on the duties and responsibilities of party wall surveyors, in the context of historic and recent case law, with a particular focus on Welter v McKeeve (2018) and Walsh v PSB Management & others (2022), and based on that to give the reader a practical guide to dealing with the difficulties of being instructed by one party but having duties to that party jointly with others. It identifies a trend in case law on party wall surveyors’ duties of having particular regard to the rights and interests of the adjoining owner and notes a potential inconsistency with the client-facing duties owed by party wall surveyors appointed by building owners. It discusses the extent to which, and manner in which, party wall surveyors should include their appointing owners in their investigation and decision-making process. It concludes that these might best be resolved by acting as impartially as possible commensurate with the surveyor’s duties to their appointing owner, keeping the parties reasonably informed, but at all times retaining control over the decision-making process. The law is stated as at February 2024.

Recent Case Law on the Application of the Profit Split Method

Is it possible for MNEs to achieve tax certainty when using the profit split method? Recent case law demonstrates a growing controversy surrounding the profit split method application, with tax authorities becoming more proficient at challenging its use.

A Legal Conundrum - The Duty to Reasonably Accommodate: A Comment on Legal Aid South Africa v Jansen 2020 41 ILJ 2580 (LAC)

Persons with disabiliites are a historically marginalised minority, but they do possess the capacity to make a valuable contribution in the workplace. Disabilty in no way dimisses the right of individuals to be employed and to make a contribution to the labour market and the economy at large. Recent case law suggests that the duty to reasonably accommodate disabled respondents remains a conundrum for both respondents and employers in South Africa. In Legal Aid South Africa v Jansen 2020 41 ILJ 2580 (LAC) the Labour Appeal Court (LAC) overturned a judgment by the Labour Court that found that Legal Aid unfairly discriminated against a respondent with depression. In 2018, the Labour Court ordered Legal Aid to reinstate Mr Jansen in that it had acted unfairly as his depression was most likely the true cause for his misconduct. On appeal, the LAC emphasised that in order to prove automatic unfair dismissal an applicant must prove both factual and legal causation. The LAC further found that the most dominant reason for Mr Jansen's dismissal was his misconduct and not his depression. Nonetheless, the LAC emphasised that depression is a prevalent illness in the current work environment and that all employers have a duty to deal with depression in a sympathetic manner and were reminded of their obligation to investigate the disability fully, to consider reasonable accommodation and to consider alternatives short of dismissal. Respondents were also reminded of the fact that they need to co-operate with their employers. Whilst South Africa has made significant progress in enacting legislation, codes, and guidelines to lay the foundation for reasonable accommodation, role-players, with specific reference to employers and the judiciary, often overlook these detailed guidelines, especially in cases where the employee suffers from depression. Disabilty is often used interchangeably with incapacity, which is problematic. This article argues that employers should follow a broad interpretation of the guidelines contained in the Code of Good Practice: Key Aspects on the Employment of People with Disabilities (2002), as well as the Technical Assistance Guidelines. Multi-party consultations and investigations need to be conducted, with the assistance of experts, if needs be. It is further suggested that until South Africa has targeted legislation and policies which make disability management functions mandatory, reasonable accommodation will remain a conundrum.

Article: Recent Korean Case Law on a Back-to-Back Letter of Credit

Article: Recent Korean Case Law on a Back-to-Back Letter of Credit

Divergences in the recent case-law of the General Court of the European Union in the field of IP

Abstract The purpose of the present article is to identify certain important issues in relation to which there have been divergences in the recent case-law of the General Court of the EU in the field of IP law and to examine the way the EU judicature has dealt with them. It is structured as follows. Its introductory part presents succinctly the main reasons for inconsistencies in the case-law of the General Court in the field of IP law and the existing mechanisms aimed at preventing, eliminating or minimizing them. Its main part examines the following four questions of EU IP procedural and substantive law, reflecting diverging opinions of the General Court: (i) admissibility of an intervention before the General Court submitted by the other party to the proceedings before the Board of Appeal of the European Union Intellectual Property Office (EUIPO); (ii) admissibility of evidence presented for the first time before the General Court in proceedings concerning EU trade marks; (iii) effect of the termination of protection of earlier rights while proceedings are pending before EUIPO; and (iv) likelihood of confusion in the context of the comparison of goods in cases involving alcoholic and non-alcoholic beverages. The article concludes by stressing that, while the occurrence of divergences in the case-law of the General Court may be unavoidable, swift detection of the existence and the exact content of such issues is an important step towards resolving them effectively, in the interest of legal certainty and equality in the application of law.

Cross-border surrogacy and the European Convention on Human Rights: The Strasbourg Court caught between “fait accompli”, “ordre public”, and the best interest of the child

Surrogacy is a form of family creation that raises many medical, ethical, and legal questions. This article examines how the European Court of Human Rights (ECtHR) deals with the issue of cross-border surrogacy and its legal consequences in its recent case law. It will demonstrated that the Strasbourg Court has developed a nuanced case law that leaves it in the first place to the national authorities to deal with the complex issue of surrogacy, whereby it is nevertheless clear that further to the Strasbourg case law even if legislators rule out the possibility of surrogacy on their territory, they will have to find solutions to “‘regularise”’ the de facto situation of the child, taking into account its best interests.

Recent Case Law on the Relocation of Functions Rules

The article discusses the recent case law on the German relocation of functions rules and the practical implications for multinational companies with regard to the legal situation both before and after the revision of the relocation of functions rules in 2022.

Article: Competition on the Merits

This article examines the meaning and contemporary relevance of the notion of competition on the merits in Article 102 TFEU case law. It also considers whether a finding of abuse presupposes that a practice is “abnormal” or amounts to a “wrongful act”. The analysis identifies friction between the old and the most recent case law. This friction was exposed in Servizio Elettrico Nazionale. Seminal rulings such as Hoffmann-La Roche, where the notion of competition on the merits was introduced, are grounded on the assumption that it is possible to distinguish, ex ante and in the abstract, between lawful and unlawful conduct. The case law that followed moved away from these ideas and clarified that whether or not a practice amounts to an abuse is typically a context-dependent inquiry.Against this background, the article provides a structure that reconciles the old and the newstrands of case law and shows that there is a place for competition on the merits within Article 102TFEU. Competition on the merits, Article 102 TFEU, unlawful conduct, abuse of dominant position

The ‘autonomization’ of EU fundamental rights protection: Insights into the recent ECJ case law on Article 52(3) CFR

In a new line of case law on the interpretation and application of Article 52(3) of the Charter of Fundamental Rights, the European Court of Justice has explicitly applied the autonomy of EU law in the field of fundamental rights protection by referring to the non-binding Explanations relating to Article 52(3) CFR. According to these Explanations, Article 52(3) CFR has the purpose to ensure the consistency of the interpretation of the Charter with the European Convention on Human Rights, without ‘adversely affecting the autonomy of Union law and of that of the Court of Justice of the European Union’. Since the Grand Chamber judgment in N. (C-601/15 PPU, 15 February 2016), 23 cases have subsequently made this same reference to the autonomy of EU law when applying Article 52(3) CFR. The main point of this article is to showcase how the ECJ uses the Explanations in this line of case law as an instrument to establish an autonomous interpretation of the fundamental rights of the CFR, which are influenced, but not fully determined, by the ECHR.

Cross-checking the recitals: the exclusion of ‘the mere provision of physical facilities’ from the right of communication to the public in recent CJEU case law

Abstract In its two recent decisions in Blue Air Aviation and Ocilion IPTV, the Court of Justice of the European Union has considered the exclusion of ‘the mere provision of physical facilities’ from the scope of the right of communication to the public under Article 3 of Directive 2001/29 (InfoSoc Directive). This article explores whether the understanding applied by the Court in these decisions is consistent with the international origins of the exclusion and previous case law of the Court. The article explains why the decision in Blue Air Aviation seems to diverge from previous case law, while this does not appear to be the case in Ocilion IPTV. Further, the article argues that the uncertainties regarding the scope of the concept of ‘act of communication’ is caused by the Court’s extensive understanding of indispensability, rather than its interpretation of ‘the mere provision of physical facilities’.

Dylematy w orzecznictwie sądów administracyjnych w zakresie wykorzystywania nadużywania prawa do informacji publicznej

Dilemmas within the case law of administrative courts on the abuse of the right to public information The right to public information is one of the systemic principles of the functioning of the state. However, restrictions in access to this particular right form exceptions to the constitutional principle. Recently, the case law of administrative courts and the views of legal authors and commentators have begun to invoke the framework of the abuse of the right to public information as a circumstance based on which an entity may deny the applicant access to information. In the absence of statutory regulation, the boundaries and guidelines for applying the framework of the abuse of the right to public information are set by the case law of administrative courts. When analysing the most recent rulings of the Supreme Administrative Court of Poland and the provincial administrative courts, one can see a certain dualism in the applicability of the framework in question. The lack of uniformity in this respect stems primarily from the need to balance the values between respecting the constitutional principle of the right to public information and the possibility of limiting it in events of abuse of an individual's right. As a result of the analysis of the recent case law of administrative courts, a position is outlined indicating that, according to the dominant line of case law, entities obliged to provide public information may invoke the framework mentioned above to protect themselves from actions that are contrary to the assumptions of the Polish Act on Access to Public Information.

Clear as mud: Proprietary Estoppel after Guest v Guest

Abstract The dust should now have settled since the Supreme Court’s landmark decision in Guest v Guest (2022). However, in exploring recent case law, this article exposes that the rules applied to decide proprietary estoppel cases remain as uncertain as ever. Some commonality can be identified, but only in the persistent favouring of promisors over promisees. This article criticises the practical and theoretical underpinnings of proprietary estoppel and proposes further reform. In particular, the article draws new links from the doctrine of secret trusts to suggest a more just and certain basis for proprietary estoppel’s future application

The Received View about the Right to Marry: A Critique

Abstract This article reconstructs a Received View of the right to marry in the European Convention on Human Rights and provides its philosophical interpretation. According to the Received View, the right to marry is a right to a legal institution of marriage. Recent case law from the European Court of Human Rights is analysed, with a focus on the protection and recognition of personal relationships under the law. According to the Fedotova case, the rights pertaining to the protection of conjugal relationships stem from the right to family life. The problem of non-distinctiveness of the right to marry is being discussed. If substantial rights protecting conjugal couples stem from the right to family life, then the right to marry does not offer any additional protection for the couple. The Received View addresses this issue. However, it is politically and morally unjust.