Substantive Judgments Research Articles

국제투자규범에서 유효수단 조항의 고찰

The International Investment Agreement (IIA) provides to investment and investor protection of contracting party’s obligations. It stipulates that if an investment and investor are damaged in violation of IIA’s protection clause, they will be subject to Investor-State Dispute Settlement (ISDS). Among the IIA's contracting party’s obligations, it does not provide for direct regulation of the conduct in judicial court of host countries.
 Regulations on the conduct of judicial courts are generally included in the category of ‘denial of justice’ in customary international law under the IIA’s ‘Minimum Standard of Treatment’ clause. It is established in the ISDS precedent. Recently, this is included in IIA's illegal indirect expropriation. The ISDS arbitral tribunal formed the legal principle of judicial expropriation. Judicial expropriation deals with deprivation of investment asset, indirect expropriation, and judicial procedures and substantive judgments.
 Regarding the conducts of the judicial authorities, it is regulated by the US model BIT and the Energy Charter Treaty (ECT) of the effective means clause of Article 12(10).
 The effective means clause provision be limited to the IIA. It was introduced as a US Model BIT policy in the 1980’s, and is regulated in a number of US BIT’s concluded by this model BIT. And, like the US model BIT, ECT also includes provisions on the receiving country's effective means clause for investor’s claims and rights enforcement.
 First, this paper examines the background of the introduction of the effective means clause in the IIA. Examining the legislative background can look into the criteria for interpreting provisions.
 Second, the specific types of violations of the provisions of effective means in ISDS arbitration cases were reviewed.
 Third, the relationship between the effective means clause of the IIA and judicial refusal was reviewed.
 In the case of the ISDS arbitration award, the violation of the ‘denial justice’ of the minimum standard treatment clause and the effective means clause was raised at the same time. The effective means clause is more flexible in interpretation and application than a denial justice. The effective means clause does not require the ‘Exhaustion of Local Remedies’ Rule. In the ISDS case of White vs. India, there is a case in which the MFN clause was invoked and an effective means clause was application. The effective means clause can be a useful guide for interpreting the access to justice clause in the Korea-Japan BIT and the Korea-China-Japan BIT.

Judging without railings: an ethic of responsible judicial decision-making for future generations

ABSTRACT Climate litigation presents specific challenges to judicial decision-making, related to uncertainties caused by the border-crossing nature of the applicable legal frameworks and the complexity of the climate system. Judiciaries around the world often turn to process-based review when dealing with such uncertainties. In process-based review, judges focus on ensuring that decision-making procedures are fair and inclusive of all relevant interests, instead of on substantive policy choices. However, in the case of climate litigation, it appears that where judges wish to use process-based review to avoid substantive judgments in the face of uncertainty, they cannot escape uncertainty about who to include and exclude from the processes. We argue that judges engaged in process-based review must develop an ethic of responsibility for those who are excluded from the democratic process by judicial decision. This ethic of responsibility focuses on the moment before and after the judicial decision, calling the judge's attention to her responsibility to become receptive to the ‘face of the other’ and to reflect on the ‘moral remainders’ caused by her decision. While the decision on exclusion remains based on uncertain grounds, this approach helps ensure it is taken responsibly.

Problemy związane z tzw. konstrukcją ciągłości przestępstwa w odniesieniu do instytucji prawa karnego procesowego – res iudicata oraz zakazu ne bis in idem

Przemysław Krawczyk discusses the impact of institutions related to the continuity of a crime on the substantive validity of judgments in criminal cases and the ne bis in idem prohibition that flows from it. The study presents the views of doctrine and judicature which treat the scope of the validity of substantive judgment in relation to conduct (acts) committed in the conditions of continuity. It should be noted at the outset that positions on this issue tend to be diametrically different. Moreover, Krawczyk points out how important it is to set temporal limits to the continuity of an offence. This issue is of considerable importance from the point of view of the substantive validity of a ruling issued in a criminal trial, because incorrect or insufficiently precise delimitation of these limits may result in a violation of some fundamental principles of criminal law, both substantive and procedural.

Merytoryczne orzekanie przez sądy administracyjne a sytuacja prawna jednostki w prawie podatkowym - wybrane problemy

Celem artykułu jest zasygnalizowanie nowych problemów jakie mogą pojawić się na styku prawa podatkowego oraz postępowania sądowoadministracyjnego w związku z wyposażeniem sądów administracyjnych w kompetencje do załatwienia sprawy merytorycznie. Poprzez merytoryczne kompetencje sądów administracyjnych wyroki tych sądów mogą kształtować sytuację podatkowoprawną jednostek pomimo braku regulacji prawnych wprost odwołujących się do takich rozstrzygnięć tych sądów. Zauważyć jednak należy, że wyrok merytoryczny sądu administracyjnego zastępuje decyzję podatkową w aspekcie materialnym oraz formalnym. Pierwszy wiąże się z tym, że sprawę podatkową rozstrzyga bezpośrednio wyrok sądu administracyjnego a nie decyzja podatkową organu podatkowego. Drugi wiąże się z tym, że postępowanie podatkowe kończy wyrok sądu a nie decyzja organu podatkowego. W konsekwencji dokonując analizy przepisów prawa podatkowego w każdym przypadku, gdy ustawa uzależnia sytuację podatkowoprawną jednostki od wydania lub doręczenia decyzji podatkowej należy mieć na uwadze, że takie same skutki jak ten akt administracyjny może wywołać również rozstrzygnięcie merytoryczne sądu administracyjnego.

OUR ANTI-KOREMATSU

OUR ANTI-<i>KOREMATSU</i>

Merger litigation: recent developments in the Competition Appeal Tribunal

There has been a recent increase in merger litigation before the Competition Appeal Tribunal (CAT) against decisions of the Competition and Markets Authority, with 11 substantive judgments having been handed down by the CAT, the Court of Appeal and the Supreme Court since 2015. This article outlines the basis on which CMA merger decisions may be challenged before the CAT and considers the implications of recent judgments for merger investigations before the CMA in relation to jurisdictional and procedural issues, the substantive assessment of the effects of a merger on competition and the imposition of remedies where a merger has been found to substantially lessen competition.

The Target Trial: A Powerful Device Beyond Well-defined Interventions.

The Target Trial: A Powerful Device Beyond Well-defined Interventions.

Internalizing Contestation in Process-Based Judicial Review

AbstractThe cases challenging the European Stability Mechanism in Eurozone creditor states show the concern courts have with protecting and promoting democratic contestation. This Article shows how John Hart Ely’s theory of process-based review provides the theoretical basis for understanding how attention to democratic contestation contributes to the legitimacy of courts reviewing legislation against constitutional norms. By focusing on promoting democratic procedures, Ely argues that courts can avoid substantive decisions that are best left to the legislature. Yet, as my discussion of the constitutional theory of constituent and constituted powers shows, no form of constituted power can avoid some exercise of constituent power. In other words, even a process-based approach cannot avoid substantive judgments. The legitimacy of these decisions depends on the availability of avenues for contestation in the judicial decision-making process itself.

Rates and the judgment of government performance

Many official statistics reported to the public appear in the form of rates, such as crimes or diseases per 100,000 people, with the choice of a base number (for example per 1,000,000, per 100,000, or per 1,000) remaining largely a matter of the choices or traditions of statistical agencies. Because prior studies have shown that people tend to judge the likelihood of an event based on the numerator alone (thus exhibiting denominator neglect), we hypothesize that ratio bias influences citizens’ perceptions of risks and conditions in society when interpreting real government statistics. To probe this hypothesis, we designed a pair of survey experiments in which a sample of US adults was randomly allocated to treatment groups receiving the same official statistics about violent crime (from the FBI) and infant mortality (from the CDC) but framed as rates with different base numbers (with an additional group receiving only the absolute number of events). We find some evidence of the expected ratio bias when violent crime is framed in terms of different base numbers, but the results for infant mortality were less consistent. For both violent crime and infant mortality, however, absolute numbers led to perceptions of the greatest risk and least favorable conditions, while individual rates (per person) led to perceptions of the least risk and the most favorable conditions. These findings suggest that citizens’ substantive judgments about risks and conditions in society may be influenced to some extent by the framing of rates by government statistical agencies when reporting official statistics to the public.

‘근로자파견성’ 판단 기준 재정립의 모색 - 판례에 대한 분석을 중심으로 -

In the case of judging the concept of dispatch of workers where illegal dispatch is problematic, it should start from the point of view of judging the concept of dispatch of workers based on the over all relevant laws, including the Act on the protection, etc. of temporary agency workers. The principle of restricting indirect employment can be confirmed in many current laws such as Employmet Security Act, Labor Standards Act or the Act on the protection, etc. of temporary agency workers.BR Since the Supreme Court’s decisions about criteria for dispatching and contracting in February 26,2015, the courts are on the principle of substantive judgment, which is reasonable. In cases where the relationship between the contractor and several subcontractors is problematic, even if there is no formal contractual relationship between the contractor and the specific subcontractor, the principle of substantive judgment must be applied.BR The courts does not classify essential and incidental standards in judging the concept of dispatching workers. The essential criteria should be to judge whether the conduct of the direction, such as exercising against the employee directly hired by the employer, exists between the contractor and the subcontract workers. Therefore, the supervision and direction of the contractor in the course of the work of the subcontract workers and the integration of the subcontract workers into the organization of the contractor should be reviewed as the essential standards. If supervision and direction of the contractor is recognized, integration of the subcontract workers into the organization of the contractor must also be recognized. The concept of dispatch a worker should not be denied because of ancillary criteria.

Prêt-à-ratifier: The CETA Decision of the French Conseil constitutionnel of 31 July 2017

This case note analyses the French Conseil constitutionnel's CETA decision of 31 July 2017 (ECLI:FR:CC:2017:2017.749.DC). The Conseil was the first national court to reach a substantive judgment on whether CETA was compatible with an EU Member State’s constitution, concluding that there was nothing in CETA that was at odds with French constitutional law. Given that CETA will also be subject to ex ante review at the European Court of Justice requested by Belgium, the Conseil constitutionnel’s decision is another milestone in the judicial saga surrounding CETA, but not the end of the road. The note argues that the Conseil employed a dynamic and cooperative interpretation of sovereignty and showed a strong attitude of deference both to France’s political branches and to the EU in terms of international treaty-making. There are, however, some aspects where the decision would have benefited from greater clarity. Nonetheless, instead of undermining France’s constitutional order, the Conseil confirmed the fundamental commitment of France to European integration and international cooperation. More particularly, it refrained from unduly interfering with the ability of the EU and its Member States to continue operating as a collective international actor.

Dworkin on external skepticism and moral permissions

This article discusses Ronald Dworkin’s first objection against what he calls external moral skepticism, the view that denies truth-value to moral judgments. According to that objection, an external skeptic denies that substantive moral judgments can be true. But, at the same time, the objection goes, what follows from the skeptical view is that all actions are morally permissible, which is in itself a substantive moral judgment. We call this ‘the self-defeating argument.’ We argue that the objection’s success depends on how we interpret the idea of moral permission, an issue Dworkin does not clearly resolve. Against his objection, we advance two different arguments. First, once we learn what role the idea of moral permission plays in morality, we can see that any plausible view of some agent’s moral permission must acknowledge its complex character, and that the existence of a moral permission must have some impact on the balance of moral reasons for other agents. On this understanding, it is false that it follows solely from external skepticism that everything is permissible. Second, we argue that even if permissions have a simple character, not a complex one, they are plausible only when framed within a moral constellation of rights and obligations. So understood, it is, again, false that it follows from external skepticism that everything is permissible.

Advocates, experts, and suspects: three images of lawyers in Chinese media reports

Research on the public image of lawyers often focuses on lawyers’ role as advocates and neglects other representations. Based on the content analysis of 669 media reports of Chinese criminal cases between 1979 and 2009, this article provides a typology of lawyers’ media images: as advocates, as experts and as suspects. Even when lawyers are characterized as defenders of suspects, media depictions of their roles are vacuous and lawyers may be considered unnecessary and dispensable. Furthermore, the characterization of lawyers in the case stories has a binary quality that is contingent upon the media's substantive judgment of case outcomes. With findings from the Chinese case, the article calls for more attention to lawyers’ images in the media, both in China and in comparative research on the legal profession.

On Not Revisiting Official Discount Rates: Institutional Inertia and the Social Cost of Carbon

Within the federal government, official decisions are a product of both substantive judgments and institutional constraints. With respect to discounting, current practice is governed by OMB Circular A-4 and the 2010 and 2013 technical support documents of the Interagency Working Group on the Social Cost of Carbon. Reconsideration of existing judgments must be subjected to a demanding process of internal review (and potentially to external review as well). Institutional constraints, including the need to obtain consensus, can impose obstacles to efforts to rethink existing practices, especially in an area like discounting, which is at once technical and highly controversial. Both decisions costs and error costs must be considered.

Immunity or Regulation? Antinomies of Religious Freedom

A central claim of the right to religious liberty is to protect the right of individuals and groups, particularly religious minorities, to practice their beliefs freely without state coercion and threat of discrimination. Through a comparative reading of Egyptian and European Court of Human Rights case law, this article argues that in authorizing the state to intervene in what appear to be mere expressions of religious belief the right to religious liberty in fact involves the state in making substantive judgments about religion, a domain toward which it claims to be neutral. This paradox is shown to haunt the jurisprudence of the Egyptian courts in seeking to uphold the principles of the sharia, as much as the European Court, which understands itself to be secular. Both systems are shown to face irreconcilable conflicts in maintaining that religious belief is immune from state intervention while at the same time sanctioning its outward expression. In noting remarkable similarities in legal reasoning, the authors suggest that rather than a corruption of the right to religious liberty these antinomies are internal to the conceptual architecture of the right itself.

Breves apuntes sobre las sentencias básicas del Tribunal de Justicia de la Unión Europea = Notes about Key Judgments of the European Court of Justice

Este trabajo pretende recoger, de una forma simple y sencilla, una relación muy brevemente comentada de (algunas) de las sentencias (más) básicas que ha dictado el Tribunal de Justicia de la Unión Europea. La perspectiva de análisis que se ha hecho primar a la hora de enfocar la selección jurisprudencial ha sido más bien una perspectiva institucionalista y constitucionalista, aunque también se han incorporado algunas de las sentencias capitales desde el punto de vista del Derecho sustantivo. Dadas las rigurosas limitaciones de espacio, en la mayor parte de los asuntos nos hemos abstraído, en la medida que ello ha sido posible, de los hechos del caso, ciñéndonos a «apuntar» el contenido jurisprudencial que ha convertido a estas resoluciones jurisprudenciales en auténticos leading cases del Derecho de la Unión. Por lo demás, se ha añadido, en cada caso, un breve comentario acerca de la posterior evolución o desarrollo de que ha sido objeto cada hito jurisprudencial.This article provides a list of some of the key and most fundamental judgments of the Court of Justice of the EU, presenting and introducing them in a clear and simple manner. The selection favours an institutional and constitutional approach to the jurisprudence of the Court, but some of the most important substantive judgments have also been included. Given limitations of space and length the presentation and comments on the judgments have not delved into the detailed facts of the cases, opting rather for the presentation of the ratio and the legal principles following from the judgments and showing how these have become «leading cases» of Union law, sometimes even gibing way to secondary legislation. The latter evolution and impact of these leading cases is also incorporated into each of them, considering them to be true jurisprudential benchmarks.

Managerialism, Structuralism, and Moral Judgment: Law, Reform Discourse, and the Pathologies of Financial Reform in Historical Perspective

Five years after the financial crisis, it remains unclear the degree to which regulatory reforms have succeeded in addressing the root causes of the financial crisis. This paper argues that ongoing policy debates about financial reform are undermined by a tension not between pro- and anti-regulatory views, but rather a deeper tension within reform discourse between two rival conceptual frameworks of how financial regulation should operate. The predominant approach to financial regulation in the United States, especially on matters of systemic risk and financial stability has revolved around a “managerial” approach, that relies heavily on the ability of insulated expert regulators to optimize and manage the vicissitudes of the financial system. Although this approach may seem logical, it is nevertheless at odds with a rival reform discourse present today, and historically. In this rival approach, the emphasis is less on expert macroeconomic management, and more on “structural” regulations: reforms that impose strict constraints on the size and powers of financial firms, potentially at greater cost to industry but also more easily implemented. This paper identifies this disjuncture between managerial and structural approaches in financial regulation discourse today (Part I). It then traces historically how the managerial ethic comes to dominate financial reform law and policy over the last century (Part II). In short, I argue that the gravitation towards managerialism stems from an underlying unease with making moral judgments about the social value of finance, and an overeager deference to financial innovation as an unqualified good. This avoidance of moral judgment in turn has created pathologies in the law of financial regulation, displacing a fundamentally moral and substantive judgment about the value of various financial firms and activities into proxy debates over, for example, agency jurisdiction, centralization, or the quality of regulatory expertise (Part III). These pathologies continue to constrain the effective implementation of financial reform in the United States. The paper then returns to some of the major financial regulation debates today to suggest that addressing issues like “too-big-to-fail” or new financial instruments necessarily requires making a moral judgment about the social value of finance — and that such judgments, once embraced, open up a range of more structural, rather than managerial, approaches to financial reform (Part IV).

Can procedural and substantive elements of decision-making be reconciled in assessments of mental capacity?

Capacity legislation aims to protect individual autonomy and avoid undue paternalism as far as possible, partly through ensuring patients are not deemed to lack capacity because they make an unwise decision. To this end, the law employs a procedural test of capacity that excludes substantive judgments about patients’ decisions. However, clinical intuitions about patients’ capacity to make decisions about their treatment often conflict with a strict reading of the legal criteria for assessing capacity, particularly in psychiatry. In this article I argue that this tension arises because the procedural conception of capacity is inadequate and does not reflect the clinical or legal realities of assessing capacity. I propose that conceptualising capacity as having ‘recognisable reasons’ for a treatment decision provides a practical way of legitimately incorporating both procedural and substantive elements of decision-making into assessments of capacity.

Integrative Analytic Approach to Detecting and Interpreting L2 Vocabulary DIF

In this article we present results of a Differential Item Functioning (DIF) study using Shealy and Stout's (1993) multidimensionality-based DIF analysis framework. In this framework, differences in test score distributions across different groups of examinees may be a result of multidimensionality if secondary dimensions (not the primary dimension measured by the test) differentially affect examinee performance. Thus, this framework requires both statistical and substantive judgments for identifying potential DIF items and substantiating the causes of DIF, which, as a result, will enhance a comprehensive construct validity argument. In this article, we illustrate step-by-step procedures of multidimensionality-based DIF analyses using LanguEdge reading comprehension test data. Qualitative data from think-aloud verbal protocols were used to generate DIF hypotheses about differential functioning of vocabulary items between two groups of Indo-European and non-Indo-European L2 learners. Statistical Simultaneous Item Bias Test (SIBTEST; Shealy & Stout, 1993) was used to test the DIF hypotheses. The DIF results supported the hypotheses by flagging four uniform DIF items and one crossing DIF item. Post-hoc analyses of the DIF-flagged items were performed by visual inspection of group differences using TestGraf (Ramsay, 2001) and revisiting the qualitative verbal data and analyses of cognate types. The results showed that DIF items with large effect sizes were associated with the following: (a) translation-equivalent cognates; (b) word meaning determined independent of context, and (c) less frequent, more difficult distracter words than those in stems. In light of empirical evidence, the article discusses implications for test development and validation processes.

The Parliament of the Experts

In the administrative state, how should expert opinions be aggregated and used? If a panel of experts is unanimous on a question of fact, causation, or prediction, can an administrative agency rationally disagree, and on what grounds? If experts are split into a majority view and a minority view, must the agency follow the majority? Should reviewing courts limit agency discretion to select among the conflicting views of experts, or to depart from expert consensus?I argue that voting by expert panels is likely, on average, to be an epistemically superior mechanism for determining facts and causation, and for making predictions, than is the substantive judgment of agency heads in rulemaking or adjudication. Nose-counting of expert panels should generally be an acceptable basis for decision under the arbitrary and capricious or substantial evidence tests. Moreover, agencies should be obliged to follow the (super)majority view of an expert panel, even if the agency's own judgment is to the contrary, unless the agency can give an epistemically valid reason for rejecting the panel majority's view.