Recent Judicial Decisions Research Articles

A Study on the Application of Law to Contracts Involving Foreign Elements－Focusing on Recent Judicial Decisions in Taiwan

A Study on the Application of Law to Contracts Involving Foreign Elements－Focusing on Recent Judicial Decisions in Taiwan

Recent Judicial Decisions of Interest to Energy Lawyers

This article summarizes recent judicial decisions of interest to energy lawyers. The authors review and comment on case law from the past year in several areas including: arbitration, bankruptcy and insolvency, class actions, competition law, contractual interpretation, cybersecurity, employment and labour, environment, Indigenous law, insurance law, securities litigation, and tax. The authors discuss the practical implications of the decisions and risk management strategies that may be of benefit to participants in the energy industry. The authors also highlight cases to watch in 2023.

The Italian Constitutional Court under stress. How to respond to political inefficiency

ABSTRACT Constitutional courts in several European democracies are under stress. In Italy, the inefficiency of the system of government has led to increasing calls for the Court to intervene in crucial legislative matters. This article examines how and why the Constitutional Court plays a key role in contemporary Italian politics. First, it focuses on the determining factors of the political system that have strengthened the Constitutional Court vis-à-vis other political branches. Second, through a quali-quantitative analysis, it focuses on controversial decision-making techniques that have enabled constitutional judges to participate in the law-making process. It focuses on the so-called ‘warnings to the legislature’, which correspond to formal invitations to parliament to intervene in a particular discipline. It then examines the ‘manipulative judgments’ that have pushed the boundaries of constitutional adjudication, with the Court increasingly assuming the role of ‘positive legislator’. Third, the article examines the consequences of the Court’s expanding role in specific policy areas, shedding light on recent judicial decisions relating to assisted suicide. The aim of the article is to contribute to the understanding of the changing role of Constitutional courts in democratic political regimes at a time of their more or less manifest crisis.

Recent Judicial Decisions of Interest to Energy Lawyers

The second year of the COVID-19 pandemic continued to impact the Canadian economy, commercial activity, and the legal system in general. Courts, tribunals, legislatures, law firms, corporations, and workers all learned to adapt to remote working, remote hearings, and new ways of living. Within the crisis came opportunities to modernize systems and think about new ways of accessing justice. This article summarizes a number of recent judicial decisions of interest to energy lawyers. The authors review key case law from several broad areas, including: Indigenous and First Nations law; contractual interpretation; environmental law; tax law; corporate and securities law; bankruptcy and insolvency; and constitutional law. In each area of law, the authors will provide insight on the significance and potential implications of these decisions on the Canadian energy industry. The authors also canvas more specific topics, such as: economic interests and the Crown’s duty to consult; the Canada Revenue Agency’s priority ranking in the restructuring process; the ability of receivers to disclaim an agreement in the bankruptcy process and unilaterally impose go-forward terms on a secured party; the priority of builders’ liens in the face of abandonment and reclamation obligations; the evolution of the “reverse vesting order”; and provincial control over resources.

농지의 정의에 대한 대법원 판례의 동향과 문제점

This article is aimed to survey the development of judicial precedents of the Supreme Court on the interpretation of definition of the term ‘farmland’ in Farmland Act and give some critical comments to the decision of ‘the Supreme Court 2021. 8. 19. sentence 2020두30665’. The author would like to indicate some issues on definition of the term ‘farmland’ and try to find some possible way out. The 1st chap. is introduction, and the 2nd chap. will look into the purpose of Farmland Act & basic ideology concerning farmland according to stipulated provisions in the text, will indicate the indistinction of meaning of definition of the term ‘farmland’ and its historical development, and try to confirm the tradition of present condition test of ‘farmland’. The 3rd chap. is a main chap. of this article, will survey the development of judicial precedents of the Supreme Court on the interpretation of definition of the term ‘farmland’. Main contents are as follows: judicial decisions on ‘farmland’ or not according to the Farmland Reform Act 1949, decisions which affirm or deny the ‘farmland’ on farmland preservation charges, decisions on unlawful diversion of farmland, and decisions on being ‘farmland’ as a required condition of issuance of qualificationc certificates for acquisition of farmland. The 4th chap. will search the subtle changes of three recent judicial decisions. Main contents as follows: the critical comments on the last decision i.e. ‘the Supreme Court 2021. 8. 19. sentence 2020두30665’, including the details of the case, judgments of first trial & second trial, reversal of the Supreme Court, results of reversal, and author’s critical review on it. The 5th chap. is conclusion of this paper, will point out some important points why men contest at law whether being farmland or not, and suggest some possible alternative ideas.

Common Hamsters in and Outside the City: Some Reflections on Urban Biodiversity, Species Recovery and the EU Habitats Directive

Abstract The Wild or Common hamster (Cricetus cricetus) is found across a broad swathe of Eurasia, stretching from Belgium in the West to the Altai Mountains in Russia. Once it was considered a farmland pest. In spite of being a strictly protected species under the EU Habitats Directive since 1994, its populations have continued to plummet throughout the past decades in many Member States such as France, the Netherlands, Belgium and Germany. This paper analyses the recent case law developments regarding this enigmatic rodent, which paradoxically has featured in no less than three rulings of the Court of Justice of the EU throughout the past decades. The two most recent rulings focus on the protected status of this species in a urban context, since one of the largest populations of common hamsters is currently situated in the Austrian capital of Vienna. There the presence of the protected species interfered with future urban development plans, which presented the Court of Justice of the EU with the opportunity to clarify certain key concepts that are entrenched in the system of strict species protection. This paper outlines the primary lessons that can be drawn from the recent jurisprudence and sketches the unlocked potential that is present in the recent judicial decisions for more effective species recovery, in general, and the future of the common hamster, in particular. The main thread throughout this article is the leeway available to better align the survival of protected species with urban development.

Legal and criminal prosecution of disinformation in Spain in the context of the European Union

Disinformation poses a very important and growing risk to our society, either alone or in association with other hybrid threats, which is being addressed at both the international and European Union (EU) as well as national level. Within the EU, a multidisciplinary and cooperative approach has been advocated between all the actors involved, in contrast to the strong regulatory perspective traditionally adopted in the history of European integration within the EU framework. For this reason, together with the inherent limitations imposed by the nature of the right to freedom of expression and information on any possible administrative censorship or criminal punishment, Spain has adopted only one recent regulation (Decree PCM/1030/2020) to establish the Spanish procedure to combat disinformation as required by European directive. Moreover, although fake news cannot be prosecuted directly in Spain outside the scope of crimes against the market and consumers, fake news can include very different types of criminal offence depending on the content and the intention with which it is disseminated. We illustrate these possibilities through some recent judicial decisions on this matter and declarations by the Office of the Attorney-General. It remains to be seen whether this soft approach to combating disinformation will be sufficient to combat this new plague on our contemporary society effectively.

Latin America Isn’t ‘Going South’: A Qualitative Sampling Analysis

This article analyses a qualitative sample of recent judicial decisions from Argentina, Colombia, Costa Rica, Chile, the Dominican Republic, Mexico and Peru. Almost all decisions in the sample show ordinary courts’ deference towards arbitration. As long as the courts operate within the framework established by the UNCITRAL Model Law or the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, arbitral awards enjoy a high level of autonomy and protection against unjustified attacks. This allows for conclusion that Latin America isn’t ‘Going South’ on its path into global arbitration realm. At the same time, in almost all jurisdictions included in the sample, Constitutional courts and Tribunals and constitutional actions for protection of fundamental rights play an extremely – indeed excessively – relevant role. Admittedly, these constitutional actions have been mainly unsuccessful and have not led to amendments of arbitral awards. Nonetheless, its sole availability generates legal uncertainty and undermines the reliability of arbitration as a mechanism of dispute resolution. It seems to be the last hurdle that Latin American countries will have to overcome before they are considered safe and appealing seats for international arbitration. Arbitration, Latin America, setting aside, recognition and enforcement, amparo, constitutionalization of arbitration

Focusing on the primary purpose: Protecting the attorney–client privilege and work product doctrine in incident response

Organisations responding to cyber security incidents must manage their incident response efforts while maintaining two critical legal protections: the attorney–client privilege and the work product doctrine. This paper analyses how the attorney–client privilege and the work product doctrine, when properly maintained, prevent information regarding an organisation’s thoughts and discussions from being disclosed or used in subsequent proceedings. It discusses how recent judicial decisions analysing the application of these two doctrines have emphasised the importance of seemingly minor details that may be overlooked during incident response efforts that can have significant consequences in subsequent legal actions when asserting protections. In particular, courts will focus on the stated purpose for any step in the incident response process (eg business versus legal), and any discrepancies between the stated purpose and conduct can have disastrous effects on future claims of protection in legal proceedings. This paper puts forward that organisations should craft incident response plans with the maintenance of these protections in mind. Practical steps organisations can take include carefully scrutinising the language in retainer agreements, involving in-house or outside counsel at the earliest opportunity, limiting the disclosure of privileged materials, and exercising caution when documenting during incident response. After-the-fact attempts to shield the results of any investigation from opposing parties in litigation are rarely successful, so organisations should take affirmative steps to ensure the vitality of these two critical legal protections from the earliest stages of incident response, which start with the planning and preparation.

Recent Judicial Decisions of Interest to Energy Lawyers

Last year’s submission canvassed judicial decisions that were released prior to, and post-implementation of, COVID-19 restrictions. The advent of COVID-19 caused unprecedented economic and social disruption and no industry or social institution was immune to its effect. Alberta was already attempting to manage one of the highest unemployment rates among the provinces when the COVID-19 pandemic exacted its multi-faceted toll. One aspect was a serious decline in the demand for oil, which further impacted oil prices, and the very manner in which energy industry participants would operate in the near and longer terms. The judiciary, and the broader legal system, suffered no less an impact, and extraordinary measures were taken to maintain the rule of law and preserve meaningful access to justice. Notwithstanding the extraordinary circumstances all have endured since March 2020, many reported decisions of significance to energy industry participants have been released by Canadian courts over the past year. This article summarizes a selection of key decisions covering developments in the Canadian law of contract, energy, environment, insolvency, Aboriginal, employment and labour, minority shareholder’s rights, as well as developments in civil litigation procedure. In each topic area the identified cases are reviewed with respect to their facts, a summary of the decision, and a brief commentary as to the implications or general significance of the case.

Obudowa górnicza jako odrębny od wyrobiska obiekt – konstrukcja oporowa, podlega opodatkowaniu podatkiem od nieruchomości. Glosa aprobująca do wyroku Naczelnego Sądu Administracyjnego z dnia 10 stycznia 2020 r. (II FSK 532/18, LEX nr 2777589)

<p>The author agrees with the Supreme Administrative Court’s judgement that has been glossed. The mining support may be classified as a separate to post-mining pit retaining structure and is subjected to the property tax. In 2011, the Constitutional Tribunal issued an interpretative judgement which is of crucial importance for the practice of the taxation of post-mining pits. First and foremost, it resolved the fundamental dilemma concerning the post-mining pit, deciding that as such a post-mining pit does not constitute the subject of taxation. The situation is different in the case of infrastructure located in underground post-mining pits, e.g. mining support. The analysis of the most recent judicial decisions shows that the issue mentioned still provokes numerous difficulties. The gloss thoroughly analyses the latest judicial decisions of administrative courts through the prism of the negative consequences for the legal situation of taxpayers. Undoubtedly the necessity to carry out a proper amendment seems justified. Such an amendment would in a clear, unambiguous manner determine the legislator’s will in the area of the taxation of post-mining pits.</p>

Recent Judicial Decisions of Interest to Energy Lawyers

The past year was a busy one for the energy industry, with many reported decisions of significance. Key decisions regarding constitutional jurisdiction, the duty to consult, and judicial review kept the industry in a pattern of optimism and hesitancy. This article summarizes a number of recent judicial decisions and provides commentary on their significance to Canada’s energy industry. In particular, decisions reviewed in this article cover subjects including constitutional division of powers, the Crown’s duty to consult, oil and gas leases and purchase and sale agreements, environmental remediation and liability, insolvency, intellectual property, tax, remedies and injunctive relief, class actions, conflict of laws, arbitration, and judicial review. In each case, the facts, a summary of the decision, and commentary on the outcomes and future implications for energy lawyers and the industry are canvassed. With the past year of decisions finishing with COVID-19 restrictions, the energy industry saw some of the most drastic change in recent memory. The industry will need to exercise perseverance in these tumultuous times in order to adapt, withstand, and recover from the changes of this past year.

Los aumentos de capital variable en la sociedad anónima

La modalidad de capital variable es ampliamente utilizada por las sociedades anónimas. Uno de los temas más contenciosos versa sobre el tipo de asamblea requerida para aprobar aumentos de capital en la parte variable y la necesidad de su publicidad en el Registro Público de Comercio. Este trabajo aborda tres recientes criterios jurisdiccionales y administrativos sobre dicha exigencia y analiza si la argumentación de ambos se sostiene a la luz de la Ley General de Sociedades Mercantiles, proponiendo un marco teórico para aclarar el tipo de asamblea necesaria para aprobar un aumento de capital en la parte variable, argumentando que existen ciertos aumentos cuyo único efecto es jurídico.

Shari’ah compliance in Islamic finance contracts: the Malaysian constitutional dilemma

ABSTRACT A closer look at the recent Malaysian judicial decisions in Islamic finance cases shows that the power of the courts to adjudicate Islamic finance disputes has been diminished. The main cause of this seems to be the enactment of sections 56 and 57 of the Central Bank of Malaysia Act 2009, which mandated the courts to not only delegate the ascertainment of Shari’ah issues pertaining to Islamic finance to the designated Shari’ah Advisory Council (SAC), but also to accept and apply its rulings. This article examines the constitutionality of both sections with special reference to the recent decision in JRI Resources Sdn Bhd v Kuwait Finance House (Malaysia) Bhd [2019] 5 CLJ 569, in which the Federal Court upheld their validity by a slim majority of 5 to 4. The article offers alternatives that are both constitutional and receptive to the SAC’s role in the resolution of Islamic finance disputes.

The Controversy over Energy Takings: A Tale of Pipelines and Eminent Domain

This article examines the controversy over the exercise of eminent by private enterprise to acquire property for oil and natural gas pipelines. Although opposition to pipelines is largely driven by broad environmental concerns to curb reliance on fossil fuels, this article focuses on whether energy takings by non-governmental entities satisfy the “public use” requirement in state condemnation statutes or as a constitutional norm. It traces the history of eminent domain in the United States from the mill acts of the eighteenth century, emphasizing that legislators frequently delegated eminent domain power to canals, turnpikes and railroads in order to improve transportation. Courts regularly sustained these laws as effectuating a “public use.” In other words, “public use” was never confined to public ownership. In the late nineteenth century courts readily upheld legislation conferring eminent domain authority on private pipeline companies, comparing pipelines to other modes of transportation. With the Natural Gas Act of 1938 Congress asserted federal authority over the transportation of natural gas, and in 1947 granted federal eminent domain authority for interstate natural gas pipelines. Oil pipelines, on the other hand, continue to rely on a patchwork of state laws to exercise eminent domain power. For decades after World War II the acquisition of land for pipelines was not particularly controversial. With new technology, however, oil and gas production soared as did the need for expanded pipeline infrastructure. Critics now maintained that taking for pipelines were not for “public use,” and therefore failed to satisfy state eminent domain statutes or were unconstitutional. This article notes the erosion of the “public use” norm as a meaningful restraint on eminent domain, especially at the federal level. It then considers the checkered pattern of recent state legislative actions and judicial decisions, arguing that most state courts are likely to uphold the use of eminent domain for pipelines. It also points out that the same legal arguments used against pipeline construction are being employed to challenge new electric power transmission lines. The article concludes by questioning whether affected landowners and environmental advocates have much in common with respect to the rights of property owners and predicting that any alliance will prove fleeting and tactical.

Remedy of Passing off in Copyright

An action in provides a very good remedy and supplement to copyrights law, where there is no infringement of rights. Its wider scope can be imported in restraining unfair practices or unfair appropriation of business goodwill. The remedies available under this action include, injunction, account for profits, damages, declaration etc. In addition to statutory protection, all the above items are potentially protected under the passing off area of the common law (which has been shown by recent judicial decisions to be a strong form of protection in cases where reputation has been clearly established).

Recent Judicial Decisions of Interest to Energy Lawyers

This article summarizes a number of recent judicial decisions of interest to energy lawyers. The authors review and comment on the past year’s case law in several areas including alternative dispute resolution, bankruptcy and insolvency, contractual interpretation (including operator agreements), competition law, corporate separateness, damages and limitations of liability, Indigenous law, torts, and selected developments relating to summary dismissal. Specific topics addressed include the interpretation of exclusion clauses; the reaffirmation of the principle of corporate separateness; confirmation that environmental cleanup costs take priority over creditors in bankruptcy proceedings; confirmation that the development, passage, or enactment of legislation does not trigger the duty to consult; and apportionment of liability and Pierringer agreements. 
 For each case, some background information is provided, followed by a brief explanation of the facts, a summary of the decision, and commentary on the outcome.

An agency model of consent and the standards of disclosure in health care: Knowing-how to reach respectful shared decisions among real persons.

In this article, we evaluate and compare the frailties of two different standards of disclosure of information regarding the risks of medical procedures applied in recent judicial decisions in the United Kingdom. As an alternative, we present the tenets and philosophical grounds of an agency model of consent and a person-based standard of disclosure. Critical philosophical analysis of the background assumptions of two standards of disclosure and their relative "tests of negligence" applied in recent legal judgements in the United Kingdom. Both standards, the "Professional Practice Standard" (the traditional standard employed in Sidaway versus Board of Governors of the Bethlem Royal Hospital, 1985) and the allegedly new "Reasonable Person Standard" (mentioned in Montgomery versus Lanarkshire Health Board, 2015), can lead to malpractice if the medical-patient relationship is not guided by attitudes of respectful care. The traditional standard is disrespectful as it does not take patients as full agents, presupposing that the patient's right is only a negative right to refuse what was deliberated only by the practitioner. The "new" standard can be disrespectful if the practitioner, concerned only with what a hypothetical reasonable individual would take as relevant for choosing between alternatives of treatment, does not know how to respect their real patient in a genuine shared decision-making process. We conclude that in order to know how to obtain valid informed consent, doctors need to engage in real conversations with their patients, revealing as much information as they, taken as real persons, need to be part of a genuine shared and respectful decision-making process.

TogliattiAzot: Russian Courts Endorse Simplistic Approach to Transfer Pricing Valuation

The recent judicial decisions in the transfer pricing case of TogliattiAzot, a large Russian producer of chemicals, have become highly controversial. On anything but strong legal grounds, the courts denied the taxpayer the right to use the transactional net margin method. Instead, the courts agreed with the position of the tax authority, which argued that the comparable uncontrolled price method should be used. This case demonstrates that Russian courts so far have been unable to delve into complex transfer pricing problems, opting instead to agree with the point of the tax administration.

Praktyka opodatkowania wyrobisk górniczych po wyroku Trybunału Konstytucyjnego z dnia 13 września 2011 roku (P 33/09)

For a long time, the issue of the taxation of underground post-mining pits and their equipment with the real estate tax has been an issue that has given rise to divergent judicial decisions of tax authorities and administrative courts. Doubts arise, first and foremost, from the ambiguity of legal definitions concerning the issues mentioned above. Such a situation led directly to certain divergence among different decisions of tax authorities and administrative courts. As a result of constantly growing doubts, the Voivodship Administrative Court in Gliwice submitted a motion to the Constitutional Tribunal to examine the constitutionality of the provisions of the Local Taxes and Fees Act to the extent to which they define a building as a subject of taxation. The Constitutional Tribunal issued an interpretative judgement which is of crucial importance for the practice of the taxation of post-mining pits. First and foremost, it resolved the fundamental dilemma concerning the post-mining pit both in its physical and comprehensive sense, deciding that as such a post mining pit does not constitute the subject of taxation. The Constitutional Tribunal stated that underground post-mining pits are not construction features (services and facilities) in terms of the Construction Law, but space created as a result of mining works, and consequently the cannot be qualified as structures under the provisions of the Construction Law. Therefore, they are not subject to real estate tax either independently (as excavations in the physical sense) or together with their infrastructure (as excavations in the comprehensive sense). The situation is different in the case of infrastructure located in underground post-mining pits. Its individual elements may be classified as construction structures (construction equipment) under the Construction Law, and thus as structures under the Local Taxes and Fees Act. While the issue of exclusion of underground post mining pits from taxation (in both physical and comprehensive sense) is no longer a controversial issue in judicial decisions, the taxation of “post-mining pits in the technical sense” continues – despite the fact that several years have passed since the judgment of the Constitutional Tribunal in 2011, and this situation provokes numerous difficulties. This is reflected by the analysis of the most recent judicial decisions relating to the same entity with respect to a dispute that has been going on for a long time – in its genesis reaching back to the period long before the day in which the aforementioned judgment of the Constitutional Tribunal was issued. The article thoroughly analyses the latest judicial decisions of administrative courts through the prism of the premise and arguments contained in the judgment of the Constitutional Tribunal. A number of detailed conclusions were presented. The authors also adopted the main premise that the necessity to carry out a proper amendment seems justified. Such an amendment would in a clear, unambiguous manner determine the legislator’s will in the area of the taxation (or non-taxation) of post-mining pits. A view was also expressed that it was possible to establish, with the help of specialists, a closed statutory catalogue of objects that would be typical and necessary for the proper functioning of post-mining pits (from the point of view of the objectives pursued there), which the legislator would consciously and undoubtedly consider to be taxable structures.