Subsequent Proceedings Research Articles

Legal perspectives on unintended and unsanctioned humpback whale entanglement in the South Atlantic trawl fishery

Whale interactions with fishing gear pose a major anthropogenic threat, yet entanglements in South Atlantic trawl fisheries remain underreported, with no published records. This lack of data extends to reports of whales found stranded with amputated tails, despite documented cases of survival even without a fluke. This study presents a novel case: a video recorded in May 2020 captured a shrimp trawler in Santa Catarina, Brazil, entangled with a humpback whale (Megaptera novaeangliae). Vocalizing and bleeding, the whale had recently lost its fluke and remained caught in the vessel's gear. Following the video's public outcry, authorities identified and apprehended the responsible vessel, conducting a thorough investigation. Although initial sanctions were issued, and evidence confirmed illegal fishing practices and neglect towards the whale, subsequent legal proceedings deemed the act unintentional and acquitted the involved parties. This report seeks to not only document this unprecedented case but also to analyze why such infractions against cetacean often receive minimal legal consequences. Examining this case within the context of broader policy and enforcement frameworks, we discuss potential explanations for the perceived low legal severity of such incidents and argue for the need for enhanced legal accountability to effectively protect marine mammals in the South Atlantic.

Role of entomological evidence in criminal investigations

Domestic and foreign literary sources on the use of necrotic fauna in forensics are analyzed. The purpose of this article is to emphasize the importance of necrotic fauna research for practical forensics and highlight the influence of necrotic entomophiles on the time of death of a living object (depending on its species and environmental conditions) which biological and general scientific methods are applied for. A comparative analysis of the activity of necrotic fauna representatives is given. The need to use necrofauna in the systematic work of forensic biologists has been updated. The main application of forensic entomology as a branch of applied entomology is the study of the faunal complex of necrobiont arthropods on a discovered corpse to meet the needs of the investigation and the court. Entomological knowledge makes it possible to successfully perform classification, identification and diagnostic tasks that appear in forensic expert practice. Since the processes of corpse decay and the types of necrotic insects on it differ depending on the type of corpse and the type of biogeocenosis where this corpse was located, each of these features affects further forensic investigations. Obtained entomological data are a reliable source of information for finding out objective truth during pre-trial investigation and subsequent legal proceedings. At the same time, determining the time of death by cadaveric fauna can have only auxiliary value, since the appearance and development of insects is very variable. Prospects for further research are formulated, including improvement of entomological research methods (in particular, in different environmental conditions), the need for development of forensic biology as an integral component of forensic science is proven.

Comparative forensic discrimination of pink lipsticks using fourier transform infra-red and Raman spectroscopy

As a routine, lipstick is daily used by females and can easily be transferred to clothes, cups, tissue papers, and other objects. The analysis of lipsticks is a relatively new and exciting field in forensics, helping to identify suspects in criminal cases where lipstick evidence has been left at crime scenes. By matching a specific brand of lipstick to a sample, investigators can positively connect certain individuals to locations or people, helping to aid in their investigation and subsequent proceedings. In this present study, 20 different pink shade lipsticks of the same manufacturer were analyzed using Vacuum FT-IR, and Raman spectroscopy to show a differentiation percentage of 95.8% between the samples. Data analysis using data mining techniques was performed on FT-IR spectra. Principle Component Analysis (PCA) was used as a data mining model for classification purposes, and it was able to distinguish between lipsticks samples based on their FT-IR spectra.

CRIMINAL CARTEL OFFENCE IN THE UK 10 YEARS AFTER THE AMENDMENT. EFFECTIVE REFORM OR FURTHER IMPEDIMENT TO PROSECUTION?

The article describes the operation in practice of UK regulations that stipulate grounds of criminal liability for the cartel offence for which the court may impose prison sentences and/or fines under the Enterprise Act 2002. Particular attention is paid to assessing the changes to the description of this offence introduced by the Enterprise and Regulatory Reform Act 2013, which came into force on 1 April 2014. The first fundamental change to this description was to eliminate the element of “dishonesty” in the description of the cartel offence. That change was due to the difficulties involved in proving the “dishonest” nature of the actions of those alleged to have committed the act. Most of the subsequent proceedings involving cartel conspiracies, even when hard-core cartels were alleged, crashed against these problems. The second fundamental change was the introduction into the cartel offence regulation of three types of circumstances giving grounds for finding that an act does not constitute an offence and three possible “defences” against allegations of the cartel offence. The article assesses to what extent these new regulations are able to ensure in practice an effective fight against cartel offences and to what extent they constitute a further impediment to this task. The article also describes the director’s disqualification measure applied under the Company Directors Disqualification Act 1986.

Trauma Forensics in Blunt and Sharp Force Injuries.

Trauma forensics is the concept of examining trauma from a medicolegal standpoint in a given jurisdiction. Blunt and sharp force traumas are classified based on the different mechanisms of causation, which have a medicolegal significance. Adopting a standard approach to the medical evaluation of such injuries in patients would serve both the purposes of rendering appropriate treatment and the documentation and preservation of medical evidence. However, most trauma cases are seen by medical practitioners with very limited forensic knowledge and skills, and they are still expected to meet the needs of the court or the judicial mechanism in subsequent legal proceedings. Therefore, some measures, including 10 practical considerations, which are applicable in attending to blunt and sharp force traumas, would limit the risk a clinician faces in the crossfire of medicine and law.

Res judicata, finality and legal effect of the judgment: interrelation between concepts

The article focuses on making distinction between the concepts of res judicata, finality and legal effect of judgments, as these terms are often used in legal literature and case law as interchangeable categories, sometimes as components of each other, sometimes as necessary conditions or consequences of each other.
 The article points out that the concept of ‘finality’ is often used in two contexts. The first one focuses on the properties of a court decision as an act of judiciary, which completes the resolution of a particular cause of action or determination of a particular issue in a specific proceeding, i.e. it is a matter of finality of the judgment in the same proceeding in which it was issued. Thus, finality is one of the preconditions for res judicata to be applied as the principle in subsequent court proceedings, but not the principle itself. The second context of use of ‘finality’ concerns the effect of a judgment in other proceedings and with this meaning ‘respect for finality’ is synonymous with ‘respect for res judicata’. The author also draws attention to the fact that the term ‘res judicata’ is used in two ways: either to denote the known principle which takes effect in the rules on legal consequences of a final judgment taken in one proceeding, in subsequent proceedings; or to indicate the final judgment, which affects the relationships of the parties beyond the court case in which it was adopted, i.e. establishes legal certainty for the parties in their relationships and, accordingly, may create the above-mentioned preclusive effect in other court proceedings. The article also substantiates the thesis that the category of ‘legal effect’ with respect to a judgment, although inherited from Soviet doctrine, still remains practically useful. It does not confront or compete with res judicata, and therefore remains appropriate to be used, above all, in order to specify a moment in time when the judgment becomes final and binding and, in some cases becomes res judicata.

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.

Res judicata and related doctrines of finality of judgments: comparative aspect

The article contains the results of the analysis of the development of res judicata doctrine into a multicomponent doctrine with different meaning in different legal systems of the world, as well as points out the difficulties of distinguishing this doctrine among other doctrines that have claim preclusive or issue preclusive effects. The article focuses on the broad and narrow meaning of res judicata, procedural links that this principle may have with the application of the estoppel rule in court proceedings. The article pays special attention to three doctrines related to res judicata: full faith and credit; election of remedies and law of the case doctrines. The doctrine of full faith and credit in the US procedural law is viewed as a branch of res judicata. In contrast to res judicata, the doctrine of election of remedies is largely based not on respect for the finality of the judgment, but on the principle of estoppel and thus might be applied in order to bar a subsequent cause of action containing claims that are inconsistent with remedies prayed for in the already considered cause of action, rather than to bar the relitigation of already litigated case. The law of the case doctrine, as it has been developed in the US procedural law and adopted in some other countries, in particular India, is related to res judicata in that both are aimed at ensuring legal certainty and the stability of court judgments. However, unlike res judicata, the law of the case doctrine to some degree allows the discretion of the court, or rather its application is discretion based, it is purely procedural and concerns the stability and consistency of the court's rulings in the same case, rather than the conclusive effect of the final judgment for subsequent proceedings. The article argues that these doctrines, especially the election of remedies doctrine and the law of the case doctrine or their elements can be used to address the problems of fairness and consistency of judgments in procedural law.

The Ping-Pong Olympics of Antisuit Injunction in FRAND Litigation

In the past two years, antisuit injunctions (ASIs) and subsequent legal proceedings associated with standard-essential patents (SEPs) subject to fair, reasonable, and nondiscriminatory (FRAND) commitments have proliferated in multiple jurisdictions. This phenomenon reveals not only the transnational nature of technical standards and FRAND-encumbered SEPs but also the jurisdictional tension between different national courts. This Article explains the emergence of ASIs in FRAND scenarios and recent developments in six jurisdictions with major interests in standard development and adoption. Countries have developed different approaches to ASIs based on their own domestic rules and interests. We believe that to promote technical compatibility and international comity, it is necessary to facilitate legal compatibility between jurisdictions at the policy level. Currently, courts in multiple jurisdictions are competing to grant ASIs and anti-anti-suit injunctions (AASIs), leading to fragmented decisions and significant costs for global standardization. We propose to include an exclusive forum selection clause in the policy documents of standard-setting organizations (SSOs) to reduce undesirable transaction costs stemming from ASIs and subsequent legal actions. Our proposal is more realistic and cost-effective than others concerning FRAND dispute resolution.

THE ROLE OF REASONABLENESS IN THE REVIEW OF LABOUR ARBITRATON AWARDS (PART 2)

This article is published in two parts. In the first part (published in the previous edition of Obiter) the general principles relating to administration review were established and the different forms of review considered. It was also established that the making of a CCMA arbitration award constitutes administrative action that is subject to the constitutional right to administrative justice; that justifiability is a constitutional requirement for just administrative action and that a failure to make a decision that is justifiable in terms of the reasons given may render an award reviewable in terms of section 145 of the LRA. This second part of the article will build on the conclusions of the first by focusing on setting out the key findings made by the CC in Sidumo v Rustenburg Platinum Mines Ltd (2007 12 BLLR 1097 (CC)) as regards the test for reviewing arbitration awards in terms of section 145 of the LRA. The purpose is to establish how reasonableness might best be understood and defined as well as to determine its implications for subsequent review proceedings. Case law that has sought to interpret and apply the principles established in Sidumo, will likewise be discussed in order to contextualise the place of reasonableness in the review of arbitration awards with a view better to understand its implications for the courts’ review function. Particular attention will be given to determining the applicability of the reasonableness standard to jurisdictional reviews. The principles laid down by the labour appeal court in Fidelity Cash Management Service v CCMA (2008 3 BLLR 197 (LAC)) will also be discussed with the objective of determining whether the court’s approach that an award is not reviewable because of flawed reasoning determining that the outcome is sustainable according to reasons identified in the record, and whether this finding is consistent with CC’s findings in Sidumo. It will also be considered whether the reasonableness standard as introduced by Sidumo will have any influence on the review of private arbitration awards in terms of section 33 of the Arbitration Act 42 of 19652 and whether parties can agree that an award would be reviewable on the same grounds and subject to the same test as a CCMA award. Finally, proposals will be made in respect of the interpretation and application of the reasonableness principle for the purpose of assisting in review proceedings to come.

The Birth of a Legal Doctrine in the Administrative State

The birth of a legal doctrine often begins when an academician associated with the legal academy has an idea on how to improve the administrative state and publishes it in a journal; a colleague reads it and elaborates on its content. With the passage of time other academicians might endorse the concept. In the the meantime the doctrine is promoted by teaching it in law schools, the birthplace of judges who then occasionally endorse it in one of their subsequent legal proceedings. This article sets forth the impact of the aforementioned actions when neither the legislative or executive branches of government are involved on a continuous basis.

Using Linked Administrative Health and Family Court Data to Evaluate Maternal Mental Health-Related Risk Factors for Repeated Child Removals

IntroductionEvidence suggests that many women whose children enter care via family court proceedings (care proceedings) in England experience mental health and substance misuse problems. Further, an estimated 22% of women will return to court within 5 years for subsequent proceedings, often returning quickly with a new infant and with little time to address underlying health-related problems. With growing pressures on England’s family justice system and the wider children’s social care sector, there is a need to identify opportunities to engage with women in a healthcare setting to reduce the likelihood of (recurrent) care proceedings.
 Objectives and ApproachWe used linked family court and mental health service data (n = 2843) for mothers who were referred to mental health services and were involved in care proceedings in South London between 2007 and 2019. We (1) describe differences in the frequency, type and timing of mental health and addictions service use between mothers who return to court and those who do not and (2) evaluate risk/protective factors for returning to court.
 ResultsAfter resolving duplicate matches (n = 2808), 1028 women (36.6%) referred to mental health services over the study period subsequently returned to court. We will describe differences in characteristics of service use and care proceedings between women who return to court and those that do not. We will also explore a range of potential risk/protective factors for returning to court, including maternal age at first child, indicators for failure to engage with services, mental disorder type, substance misuse, and maternal neighbourhood deprivation status.
 Conclusion / ImplicationsBetter understanding of how women use mental health and addictions services before, during and after proceedings, and identification of key risk/protective factors for returning to court, would inform strategies to reduce recurrent involvement in care proceedings among this population group.

Transnational Coordination of Setting Aside and Enforcement of Arbitral Awards – A New Treaty and Approach to Reconciling the Choice of Remedies Concept, the Judgment Route, and the Approaches to Enforcing Awards Set Aside?

The rendering of a final arbitral award can be the starting signal for a multiplicity of state court proceedings. Not all of those will be illegitimate, for instance if an award creditor needs to commence several enforcement proceedings in order to enforce the whole award. More critical, however, and more likely to invite abuse, is the relationship of setting aside and enforcement. Where an award debtor fails to request that an award be set aside, or fails to raise grounds for setting aside, or loses setting aside proceedings, should this award debtor be allowed to rely on those very same grounds again in subsequent enforcement proceedings? Or in turn, if the award is set aside, should the award creditor be allowed to enforce it? All this raises questions of how to coordinate setting aside and enforcement. While coordination mechanisms exist under domestic law, it is submitted that coordination at the transnational level leaves much to be desired. We will therefore take critical inventory of the current level of coordination at the domestic and the New York Convention level, assessing its respective strengths and weaknesses, also in light of well-known doctrines such as the choice of remedies concept and the judgment route. We will then propose wording for a new international treaty, complementing the New York Convention, to improve coordination of setting aside and enforcement and discuss the feasibility of such a project.

Res Judicata in International Arbitration: Choice of Law, Competence & Jurisdictional Court Decisions

Given the twin goals of finality and efficiency, the doctrine of res judicata has come to be applied, although less frequently, in the international arbitration context as well. However, being largely perceived as a proverbial ‘twilight issue’ in international arbitration, its application is fraught with uncertainties and inconsistencies. Amongst the more compelling concerns regarding the subject matter, this Article tackles the ambiguities around the choice of law analysis for preclusion standards; the doubts regarding the arbitral tribunal’s kompetenz-kompetenz to address the issue; and the peculiar nature of jurisdictional court decisions and its res judicata effect in subsequent arbitral proceedings. Rarely, if ever, does the lex arbitri shed light on the precise standards of preclusion to be applied in a particular case. Instead, the choice of law analysis by arbitral tribunals are guided by a fluid balancing act between varying degrees of private rights and public interests. While the The International Law Association (ILA) Recommendations (Resolution No. 1/2006) do come close to a purported international standard, its limited acceptability within the community and lean adoptability across jurisdictions, brings to the fore the uncertainties attached to the doctrine itself. Confusion further ensues when the authority of the tribunal to decide on its own jurisdiction is brought into question on confronting the defense of res judicata. While the New York Convention’s mandate of recognition of awards empowers the Courts to afford res judicata effect to a prior adjudication, the same conflicts with the arbitral tribunal’s own competence to address arguably procedural arbitrability issues such as this. These concerns amplify manifold when an arbitral tribunal encounters a prior Court’s decision regarding the tribunal’s jurisdiction, including the question of non-arbitrability of the disputed claim. In the absence of exacting standards and principles to deal with any of these issues, different tribunals have been discharging their own brand of the doctrine’s broad interpretation. This Article expounds the existing literature on the subject, and thereafter, attempts to analyse each of these complex and controversial issues to better equip practitioners and arbitrators when faced with such concerns; at least until universal conformity is achieved through promulgations bordering a truly international standard. Res Judicata, Claim Preclusion, Choice-of-Law, Kompetenz-Kompetenz, Jurisdictional Decisions

Neurological Manifestations of COVID-19 (SARS-CoV-2): A Review.

Background: Coronavirus disease 2019 (COVID-19), caused by severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2), has been associated with many neurological symptoms but there is a little evidence-based published material on the neurological manifestations of COVID-19. The purpose of this article is to review the spectrum of the various neurological manifestations and underlying associated pathophysiology in COVID-19 patients.Method: We conducted a review of the various case reports and retrospective clinical studies published on the neurological manifestations, associated literature, and related pathophysiology of COVID-19 using PUBMED and subsequent proceedings. A total of 118 articles were thoroughly reviewed in order to highlight the plausible spectrum of neurological manifestations of COVID 19. Every article was either based on descriptive analysis, clinical scenarios, correspondence, and editorials emphasizing the neurological manifestations either directly or indirectly. We then tried to highlight the significant plausible manifestations and complications that could be related to the pandemic. With little known about the dynamics and the presentation spectrum of the virus apart from the respiratory symptoms, this area needs further consideration.Conclusion: The neurological manifestations associated with COVID-19 such as Encephalitis, Meningitis, acute cerebrovascular disease, and Guillain Barré Syndrome (GBS) are of great concern. But in the presence of life-threatening abnormal vitals in severely ill COVID-19 patients, these are not usually underscored. There is a need to diagnose these manifestations at the earliest to limit long term sequelae. Much research is needed to explore the role of SARS-CoV-2 in causing these neurological manifestations by isolating it either from cerebrospinal fluid or brain tissues of the deceased on autopsy. We also recommend exploring the risk factors that lead to the development of these neurological manifestations.

Oględziny i dokumentacja zdarzeń o charakterze upadku z wysokości w terenie eksponowanym i jaskiniach z udziałem ratowników Grupy Jurajskiej Górskiego Ochotniczego Pogotowia Ratunkowego

The article is devoted to issues related to the use of forces and resources of mountain rescue teams during visual inspection of incident areas in exposed areas and caves. The article presents general assumptions about the organization and coordination of this type of inspection from the moment of receiving information about the event and the start of rescue operations by GJ GOPR, until the completion of collecting and securing all infor-mation and evidence as part of the inspection of the incident scene. The article contains issues related to the exchange of information between the involved entities, preparation of documentation meeting formal and legal requirements by trained GJ GOPR rescuers, securing items that may constitute evidence in subsequent proceedings, and the handling of human corpses and remains.

Liars are perceived as more credible than truth‐tellers who recall a repeated event

SummaryRecurring forms of abuse like domestic violence are unfortunately common. When an individual makes an allegation about their experience, however, there is rarely additional evidence to corroborate their claim. The veracity of the allegation is thus likely to be a central concern in subsequent proceedings. This experiment explored evaluator's perceptions of adults who were lying, or truthfully recalling a repeated event. In this experiment, participants observed a filmed interview of a speaker recalling an event they had experienced once, or a speaker recalling one instance of an event that they had experienced multiple times. Alternatively, some participants viewed an interview of a speaker who was lying about the event. Repeated‐event speakers were perceived as less credible than both single‐event speakers and liars. It is important that future research investigates ways to reduce the negative effect that the nature of memory for a repeated event has upon speakers' perceived credibility.

The Issue Class Revolution

In 2013, four Supreme Court Justices dissented from the decision in Comcast v. Behrend establishing heightened requirements for the certification of damages class actions. In a seemingly off-handed footnote, these dissenters observed that district courts could avoid the individualized inquiries that increasingly doom damages classes, by certifying a class under Rule 23 (c)(4) on “liability” issues only, and “leaving individual damages calculations to subsequent proceedings.” The dissenters were on to something big. In fact, the issue class and follow-on damages model has broad potential to restore the efficacy of aggregate litigation across a number of substantive areas, after decades of judicial hostility. This article offers a bold and original vision for the issue class procedure, promising scale efficiency while sidestepping the doctrinal land mines that dot the class action landscape. It is a vision rooted in sober pragmatism and an account of the economic incentives confronting entrepreneurial law firms as they consider investing in aggregate litigation under Rule 23(c)(4).

Organizacja społeczna jako strona postępowania w sprawie odebrania zwierzęcia na podstawie art. 7 ust. 3 ustawy o ochronie zwierząt

SOCIAL ORGANIZATION AS A PARTY TO PROCEEDINGS ON TAKING AN ANIMAL AWAY UNDER ARTICLE 73 OF THE POLISH ANIMAL PROTECTION ACTThe article concerns the verification of the thesis that a social organization whose representative took an animal away during an intervention has a status of the party in the subsequent proceedings on issuing a decision under Article 73 of the Polish Animal Protection Act. Granting a status of the party to the social organization that collected the animal on such a basis allows it to protect its reasonable interests in administrative and administrative court proceedings. The outcome of such proceedings may result in the liability of the social organization for damages material and non-material resulting from taking the animal away. The outcome of the case related to taking an animal away under Article 73 of the Animal Protection Act directly influences the issue of settling the costs of transport, welfare and necessary treatment of the animal.

Understanding recurrent care proceedings: Competing risks of how mothers and fathers enter subsequent care proceedings in England

BackgroundDespite progress in understanding mothers' (re)appearances within family justice, fathers have not yet received due attention in research on recurrent care proceedings.
 Aims
 
 Compare parents' gendered risks of entering subsequent care proceedings;
 Map family relations underpinning recurrent care proceedings;
 Investigate the role of family members' life course characteristics (e.g. age, number of children) in shaping the risk of returning to court.
 
 MethodsAnalysis drew on 2007/08-2017/18 administrative records from the Child and Family Court Advisory and Support Services (Cafcass) in England. From a sample of recurrent parents (N = 24,460), a latent class analysis established profiles of who they returned with. A competing risks analysis of all parents (N = 165,550) modelled the risk of returning into each profile given index characteristics.
 ResultsOverall rate of return for mothers was 1.7 times that of fathers: 22% after 5 years, compared to 13% for fathers, and 29% and 17% after 10 years, respectively.
 Five distinct profiles of recurrent parents were established: 'recurrent family', 'recurrent couple', 're-partnered couple', 'complex recurrence', and 'lone parent'. The vast majority of fathers who entered subsequent proceedings did so as either a part of a recurrent family (41%) or recurrent couple (36%). However, these two profiles represented a much smaller proportion (25% and 19%, respectively) of all recurrent mothers, while the remainder returned with either a new partner or as a lone parent (49%), both with a new child. Complex recurrence represented a small proportion for both mothers and fathers (7% and 11%, respectively). The risk of each of these profiles is characterised by the distinct life course positions of the parent.
 ConclusionThe results underscore the value of a relational approach and understanding a parent's position within the life course in social work research towards building a fuller picture of recurrence.