Use Of Case Law Research Articles

How Does Case Law Shape Civil Law Systems? An Analysis of Spanish Administrative Courts

The paper explores the use of case law by Spanish administrative courts. Based on a database of 2964 sentences, a content analysis captures the integration of case law into the legal basis of court rulings. Even though case law is not listed as a source of law in the Spanish legal system, courts follow case law from either the same sentencing court (self-referential pattern) or higher courts (hierarchical pattern). The results of a logistic regression analysis point to a higher level of regulatory complexity and the configuration of the appellate procedures as incentives to integrate higher courts’ case law.

Common Features of the Right to Property and International Investments: Evidence from the use of ECtHR Case-law in Investment Tribunals’ Decisions

Abstract The use of the case-law of the European Court of Human Rights (“ECtHR”) by arbitral tribunals represents a very common practice in investment arbitration. In particular guarantees provided for by Article 1 of Protocol 1 to the European Convention on Human Rights (“echr”) are often referred to in arbitral proceedings in order to clarify bilateral investment treaties’ (“bit s”) provisions because of their broad meaning, such as, for example, the expropriation and the fair and equitable treatment standards. Although this cross-reference is widespread, the legal grounds that allow the application of echr provisions in arbitral proceedings seem to be quite unexplored in the scholarly debate. The aim of this work is to analyze the different tools that have been used to this purpose, namely the systemic interpretation and analogical reasoning, explaining why the latter seems to be the most meaningful one. Since its application naturally implies the existence of common features between the different legal rules at stake, its employment represents a clear evidence of the similarities shared by the right to property and international investments. Patrimonial rights in international law share the same demand of protection, because of the power imbalance suffered by the owner or the investor in respect of State authorities. This acknowledgment can be useful in order to encourage ECtHR case-law application by arbitral tribunals, implementing investors’ protection and reducing the uncertainty of bit s’ provisions.

The case-law from the ECHR regarding the compensation of moral damage to the employee

The purpose of the article is to study the practice by the ECHR regarding reimbursement for moral harm caused to the employee. The subject matter of research is moral damage. Methodology. The methodological bases for the Article are: general scientific, systematic methods, method of descent from the abstract to the concrete, sociological and legal research method, method of generalizing judicial practice, etc. Research results. The judgments by the ECHR on compensation for moral damage to employees, which was caused as a result of discrimination, dismissal due to a strike, because of the statement in the media, political beliefs, based on gender and due to illness, were considered. Practical meaning. It was proven that since the rights of the second generation (which include labor rights) are not reflected in the Convention, a person has no right to apply for their protection to the Court. This is possible only if other fundamental rights were affected during the violation of labor rights. Value/originality. The use of case-law from the ECHR in the process of researching the institution of compensation for moral damage to an employee will contribute to the development of its use in law enforcement activities and the dissemination of the experience of equitable reimbursement as a way to protect the violated rights and legitimate interests of workers in Ukrainian realities.

The Use of Case Law in the Legal Curriculum: Why and How?

The Use of Case Law in the Legal Curriculum: Why and How?

External Systemic and Comparative Arguments in the Interpretation of the Slovak Constitutional Court

This contribution aims to analyze the interpretation methodology used by the Constitutional Court of the Slovak Republic in its decision from 4 July 2012 upon protection of property rights and a right to a fair trial. Focus is given to the external systemic interpretative method, especially to the use of caselaw of the European Court of Human Rights.

The Significance And Utility of the Rules of Treaty Interpretation, as Encapsulated in the 1969 Vienna Convention on the Law of Treaties, for the Purpose of Ascertaining the Meaning of Treaty Provisions

The interpretation of treaties is a complicated and problematic question at times. It is vital to interpret the law accurately in order to ascertain the correct meaning of treaty provisions and terms to provide a precise application. Consequently, rules of treaty interpretation play a significant role in purpose of finding distinct meaning of treaty provisions which is critical for both in the implementation stage and in mending any disputes afterwards. The aim of the treaty interpretation rules included in the 1969 Vienna Convention on the Law of Treaties (VCLT) is to bring precision and transparency to the agreements between member states. Therefore, in this paper the significance and the utility of the rules of treaty interpretation set in the 1969 Vienna Convention will be considered. This will be done by briefly considering the background of the convention. Then the rules of interpretation laid in article 31-33 such as ordinary meaning, context, purpose and object will be analysed. Additionally, the usefulness of these articles will be critically analysed with adequately supported legal opinions and a broad use of case law. This paper will claim that the rules of treaty interpretation of the VCLT is an extremely important tool in the interpretation of treaties.

Artificial intelligence and the judicial memory: the great misunderstanding

Artificial intelligence is a widely debated topic, but it is often poorly defined. The purpose of this paper will be to return to the foundations of its functioning: mathematical and statistical formalism. While it works successfully in closed, quantifiable environments, it is far less adapted to open environments like the justice system. Indeed, the use of case law with these methods does not make it possible to enhance the judicial memory faithfully as the judgments that are processed do not necessarily include all of the grounds for a decision. This critique must not obscure another reality, which cuts across our whole society: an emerging project of governance by data, which is likely to call into question the very foundations of our democracies, including the rule of law.

The use of case law in China’s Belt and Road Initiative

ABSTRACT This article assesses the prospects of establishing a body of Chinese case law for the purpose of promoting the Belt and Road Initiative (BRI) and devises appropriate strategies for such a proposal. Through a general survey of 22 significant BRI cases and a close examination of four samples drawn from them, this article explores the features, deficiencies, and promises of three prominent models of case law currently adopted by the Supreme People’s Court (SPC) and makes a number of suggestions for further developing a BRI case law system in China. It is suggested that a modified Typical Case Model should serve as the primary model at the present stage. The detailed case analyses conducted in the article reveal that case summaries provided by the SPC suffer from a number of flaws in need of fixing, including a general failure to address the needs of target users from BRI members, an insufficient number of cases, inaccessibility, incompleteness, and inaccuracy. Accordingly, a range of responsive measures are proposed to ameliorate the Typical Case Model. In particular, it is suggested that the model should focus more on cases involving the application and interpretation of international rules (such as the United Nations Convention on Contracts for the International Sale of Goods) in the immediate future.

ОКРЕМІ АСПЕКТИ ЗАСТОСУВАННЯ ПРАКТИКИ ЄВРОПЕЙСЬКОГО СУДУ З ПРАВ ЛЮДИНИ ПІД ЧАС ЗДІЙСНЕННЯ ПРАВОСУДДЯ В КРИМІНАЛЬНИХ ПРОВАДЖЕННЯХ ЩОДО КОРУПЦІЙНИХ ЗЛОЧИНІВ

У статті досліджено окремі аспекти застосування практики Європейського Суду з прав людин и під час здійснення правосуддя в кримінальних провадженнях щодо корупційних злочинів. Проаналізовано сучасні думки науковців щодо застосування практики Європейського Суду з прав людини під час здійснення правосуддя в кримінальних провадженнях щодо корупційних злочинів. Досліджено авторські наукові підходи, які обґрунтовують висновок про те, що використання практики ЄСПЛ у кримінальному су-дочинстві України є обов’язковим. Визначено, що застосування практики Європейського Суду з прав людини під час здійснення правосуддя в кримінальних провадженнях щодо корупційних злочинів прямо передбачено ч. 2 ст. 8 КПК України. Також доведено, що використання практики ЄСПЛ вітчизняними судами під час здійснення правосуддя в кримінальних провадженнях щодо корупційних злочинів як мотивація виправдувальних вироків не завжди пов’язана з урахуванням практики ЄСПЛ щодо провокації вчинення злочину, а також засновується на використанні доктрини «плодів отруйного дерева» та «розумного сумніву».

Artificial Intelligence and the Judicial Memory: The Great Misunderstanding

Artificial intelligence is a widely debated topic, but it is often poorly defined. The purpose of this paper will be to return to the foundations of its functioning: mathematical and statistical formalism. While it works successfully in closed, quantifiable environments, it is far less adapted to open environments like the justice system. Indeed, the use of case law with these methods does not make it possible to enhance the judicial memory faithfully as the judgments that are processed do not necessarily include all of the grounds for a decision. This critique must not obscure another reality, which cuts across our whole society: an emerging project of governance by data, which is likely to call into question the very foundations of our democracies, including the rule of law.

PECULIARITIES OF THE USE OF NORMS OF CASE LAW IN THE SYSTEM OF DOMESTIC JUSTICE

Taking into account the basic principles of a democratic, rule of law, social state, the key of which is the principle of separation of powers in the state, Ukraine is building a state apparatus. Declaring such a principle in the Constitution of Ukraine and building on it the basis of the functioning of all branches of government have become a prerequisite for the acquisition of judicial branch of power signs of independence and independence. LA Lutz argues that the functioning of the judiciary as an independent is accompanied by its development and the introduction of rulemaking functions. This fact is related to the involvement of the judiciary in the settlement and resolution of national cases. As a result, throughout the years of Ukraine's independence, the courts have recognized the right not only to the application and interpretation of legal rules, but also to their creation. As of today, the law does not formally enshrine the functions of rulemaking, but in legal science there are discussions about the possibility of the existence of case law in the state. The analysis of court decisions suggests that the precedent is not only those of the courts of Ukraine that have a rule of law, but also those that contain appropriate explanations of the content of the rule, or of judgments that contain criteria for the similarity of the application of the rules. The provisions of the basic law − the Law of Ukraine “On Judiciaryand Status of Judges” of 02.06.2016, № 1402-VIII have been analyzed due to the possibility of recognizing judicial precedent as anofficial source of law in accordance with the requirements of the current domestic legislation. In this article, we conducted a detailedanalysis of the peculiarities of the use of case law in the system of domestic justice. Particular attention was paid to updating the system of enforcement of court decisions, including the decisions of the ArmedForces. It is stated that the institute of enforcement of judgments is based on the functioning of the Laws of Ukraine “On EnforcementProceedings” and “On Bodies and Persons who Enforce Enforcement of Judgments and Decisions of Other Bodies”. A separate novelty of judicial reform − the creation of new higher specialized courts as courts of first instance for the considerationof certain categories of cases: the High Court for Intellectual Property and the Supreme Anti-Corruption Court, whose review will bevested in the Armed Forces, has been investigated.

Reconceptualising the Right to a Clean and Healthy Environment in Kenya

States around the world are progressively protecting environmental rights. The Constitution of Kenya 2010 provides for environmental rights under Articles 42, 69 and 70. However, this study argues that there is need to reconceptualise the right to a clean and healthy environment as established under Article 42, as the right is geared towards human utility rather than intrinsic environmental protection. Thus, the right is shrouded with anthropocentric concerns which may be construed as insufficient in the protection of natural resources, ecosystems and other non-human species for their ecological and intrinsic value. Accordingly, the study examines the right to a clean and healthy environment as envisaged in the Constitution of Kenya 2010 and, from that context, assesses the efficacy of anthropocentric environmental rights in environmental conservation highlighting the potential challenges faced in their implementation. As a way forward, the study recommends bicentric environmental rights as an alternative to anthropocentric environmental rights. The study realises its objectives through the use of case law and literature review.

The role of case law in judicial decision-making: A sociological perspective

The article attempts to verify a common conception that has by now become an integral part of legal culture in civil law jurisdictions, namely, the conception that despite its unresolved legal status, case law (i.e. the body of past judicial decisions) is widely used by the courts when they are justifying their interpretative choices. For this purpose, an exploratory empirical study of court citation practices was conducted. The study focused on a sample of the officially reported decisions of the Supreme Court of the Republic of Slovenia and the appellate (Higher) courts on civil matters in 2011 that were publicly accessible on the official internet database of the Slovene courts. The aim of the study, which provides the first systematic outline of the use of case law in the judicial decision making process within the Slovene legal system, was to verify whether case law in fact constitutes an important factor in judicial decision-making. It did so by focusing on the extent and the manner in which Slovene courts refer to case law, as these may be inferred from the reasoning of their decisions.

Electronic evidence in Nigeria

Timothy Tion illustrates the development of electronic evidence in legal proceedings in Nigeria, and illustrates how the Nigerian courts are handling electronic evidence with the use of case law. Index words: Nigeria; electronic evidence; admissibility; metadata; electronic banking; ATM; proof; education of lawyers

Common Law Crimes and Indigenous Customs: Dealing with the Issues in South African Law

This article examines the so-called ’cultural defence’ in South African criminal law. The expression ’cultural defence’ refers to the phenomenon where indigenous customs are taken into account in the processes of a criminal trial and may have an effect on the outcome. In South Africa they may play such a role in two respects: first during the process of inquiry to ascertain if the requirements for a particular crime have been met; and secondly when a suitable punishment for a convicted accused must be determined. By making use of case law, illuminated by some comparisons with the role of Aboriginal customs in criminal trials in Australia, it is shown that culture played a definite role in South African cases prior to 1994, albeit not strictly in the sense of a true cultural defence.The paper then examines whether the South African Constitution and, in particular, its human rights provisions, brought about a new approach to be taken in matters where custom has been an element in the motivation for an act which would normally be a crime. Making particular reference to the examples of the twala custom (a form of abduction, with or without the consent of the girl or her parents, as a preliminary to a customary marriage) and belief in tokoloshe spirits, it is shown that South African courts have sometimes, although often reluctantly, given attention to these customs, although sometimes showing little understanding of them. The major question which emerges today is whether the constitutional provisions demand a formalisation of the cultural defence or whether the existing principles used in the evaluation and punishment of crimes could continue to be applied.

What are the differences between disparate treatment and disparate impact?

Defines the two concepts before discussing disparate impact theory which is not cognisable under the US Age Discrimination in Employment Act (ADEA) through the use of case law. Lists the protected categories which are covered by disparate treatment and disparate impact law and cites the reasons under which a complaint can be made. Provides a suggested structure for addressing such claims within the company.