Use Of Precedent Research Articles

O CÓDIGO DE PROCESSO CIVIL NA FORMAÇÃO DOS PRECEDENTES NO BRASIL

True precedent, the result of a scientific method of judgment, is adopted in countries with the Common Law legal system, which is based on customs. In line with global concepts that seek to converge the two main legal systems in the world – Common Law and Civil Law –, the Brazilian legislator included the use of precedents in article 926 of the 2015 Code of Civil Procedure. The objective is to promote legal certainty, standardize judicial decisions, reduce litigation and increase the credibility and efficiency of the Brazilian justice system. However, due to other provisions included in the Code of Civil Procedure and the divergent interpretation of the Judiciary in relation to the adopted system, Brazilian precedents have not yet fully achieved this purpose, requiring further study and possible adjustments by legal practitioners and the Legislature, whose intention is to discourage litigation.

Flexibility and Adaptation of Contract Law

This study aims to explore the differences in the flexibility and adaptation of contract law in Indonesia which adheres to the civil law system and Singapore which is based on common law, as well as its implications for modern business. Contract law in Indonesia is still heavily dependent on the Civil Code (KUHPerdata), which dates back to the colonial era and has not undergone significant updates. This has led to stiffness in the implementation of contracts, especially in fast-growing business sectors such as digital technology. In contrast, Singapore has adopted a common law system, which is more flexible and able to adapt to changes in the economy and international business dynamics through the use of precedents. In a business context, flexibility and legal adaptation are essential because contracts often have to adapt to new emerging needs, including changes in technology, regulations, and market conditions. This study uses a normative juridical approach with a comparative method, examining laws, court decisions, and related academic literature. The case study of business contracts between Indonesian and Singaporean companies in the technology sector is also used as a study material to provide a practical view of the effectiveness of each country's legal system in facing contemporary business challenges. The results show that Singapore excels in contract flexibility due to the use of precedents that allow for legal adjustments without the need for formal legislative changes. On the other hand, contract law in Indonesia is often unable to keep up with rapid developments due to rigid and outdated regulatory limitations. This difference has an impact on the speed and efficiency of contract dispute resolution in both countries, with Singapore being able to resolve disputes more quickly through a more responsive system. This study concludes that to increase competitiveness in the global economy, Indonesia needs to reform the Civil Code to be more flexible and adaptive like the one implemented in Singapore. These recommendations are important to ensure that Indonesia can create a more competitive business environment and support innovation, especially in the ever-evolving digital era.

Peculiarities of the proof process in Japanese criminal procedure

In today’s open world, with the growing importance of the international component in the fight against crime, a legal professional naturally needs knowledge that goes beyond the national legal framework, including the institution of international legal assistance. Studying and comprehending the experience of criminal procedure in different countries of the world makes it possible to apply the relevant positive practices in Ukraine and improve the process of forming a legal culture in independent Ukraine. In particular, it is important to study the experience of criminal procedure in Japan, a country with the lowest crime rate among the industrialized countries of the world. Familiarization with this system should help to develop a comprehensive approach to improving criminal proceedings in Ukraine, which will contribute to the successful development of a democratic, social, and legal state. Currently, the process of combining different criminal procedural systems of the world is underway, but the Anglo-American system of criminal procedure has its own peculiarities that can be distinguished from other systems of criminal procedure. The criminal procedure legislation of Japan is quite specific. It reflects both continental and Anglo-Saxon models of law. In particular, the widespread use of precedent makes it similar to the Anglo-Saxon form, and the presence of prosecutorial supervision over the police during the investigation process - to the continental one. The problems of criminal procedural evidence are constantly attracting the attention of scholars. The scientific interest in the problems of collecting, verifying and evaluating evidence is not accidental and is explained by their importance for criminal proceedings. Evidence is a central, core component of criminal procedure. Proper evidentiary activity is a prerequisite for solving its tasks. Therefore, further research of both the general theoretical issues of criminal procedural evidence and its individual problematic aspects remains an important scientific task, the solution of which will contribute to improving the efficiency of domestic criminal proceedings and bringing them closer to European standards. The article examines certain peculiarities of criminal procedural evidence in Japan. The author examines the peculiarities of the process of proof at certain stages of the process, and analyzes the legal status of the subjects of proof. The materials of the article are of both theoretical and practical value. They can be used for further scientific research of the peculiarities of domestic criminal procedural evidence, as well as for proper understanding and implementation of its law enforcement criminal procedural activities.

Jurisprudence in hard and soft law output of international organizations: a network analysis of the use of precedent in UN Security Council and general assembly resolutions

Jurisprudence in hard and soft law output of international organizations: a network analysis of the use of precedent in UN Security Council and general assembly resolutions

Orderly Development of the Case Law of the European Court of Human Rights

The article analyzes the use of precedent by the European Court of Human Rights. It examines the various types of precedents in the practice of the Court and how they are utilized. It discusses different methods of development of case law, including overruling precedents, branching of the case law, and fragmentation of the case law. The article also proposes guidelines for the orderly development of case law.

Evolution of the role of jurisprudence in Brazil

This article is developed under the observance of related aspects regarding the evolution related to jurisprudence in the Brazilian context. The discussion on precedents and stabilization of the legal system by virtue of the interpretation of the law with the concrete case, and which results in the judicial decision paradigm, is not a novelty of contemporary law. Much is discussed in the Lusitanian law about this theme in Brazil and, therefore, it is necessary to understand the issue in order to understand the role of law today. Although the theme is broad, an overview of precedents will be brought with regard to their evolution. The method used for this study will be deductive, through a literature review in the literature pertinent to the subject. The conclusions of this research indicate that there is use of precedents in Brazil, however, much must be done, aiming, above all, at the effectiveness and standardization of these (Precedents) in the legal system.

Backloading to extinction: Coping with values conflict in the administration of Australia's federal biodiversity offset policy

AbstractPolicy‐makers are frequently required to consider and manage conflicting public values. An example of this in the environmental domain is biodiversity offset policy, which governments worldwide have adopted as a mechanism to balance environmental protection with socio‐economic development. However, little work has examined administrative practices underpinning biodiversity offset policy implementation, and how the adoption of coping strategies to manage value conflicts may influence resulting policy outcomes. This study fills this research gap using a case study of Australia's federal biodiversity offset policy under the Environment Protection and Biodiversity Conservation (EPBC) Act 1999. Using data from 13 interviews of federal policy administrators, I show that the introduction of a new policy in 2012 enabled a shift from the use of precedent to a technical approach for setting offset requirements under the EPBC Act. Yet, multiple sources of policy ambiguity remain, and administrators have adopted post‐approval condition‐setting, or ‘backloading’—a form of cycling, facilitated by structural separation—to defer detailed assessments of offset requirements until after biodiversity losses are approved. Backloading thus undermines the effectiveness of environmental policy and will persist as coping strategy unless policy ambiguity is reduced via legislative amendments and adequate resourcing of biodiversity conservation.Points for practitioners Biodiversity offset policy requires administrators to manage conflicting environmental and socioeconomic values. Technical decision tools reduce reliance on case‐by‐case decision‐making, but multiple ambiguities persist. Backloading (post‐approval condition‐setting) defers values conflict, but reduces transparency, accountability, and policy effectiveness. Policy ambiguity must be reduced at the political level to facilitate effective biodiversity conservation.

The European Court of Justice as a Constitutional Court. Legal Reasoning in a Comparative Perspective

After having briefly presented some institutional aspects of the Court of Justice of the European Union, the present report analyses forty of its leading cases in order to assess the general characteristics of the legal reasoning developed by the Court in interpreting the Treaties. The report underlines the importance of teleological interpretation and arguments from precedents, the frequency and cogency of the arguments based on the principle of the rule of law, the difficulty for the Court in referring to the political nature of the Union and the tendency to eschew constitutional rhetoric. Above all, the report underlines the high degree of impersonality that the Court is able to achieve in its judgments and concludes that it depends on a variety of factors such as the collegiate nature of the judgments, their subject matter, the declining but persisting influence of the French model, the need for translation and informatisation, the extensive use of precedents and literal self-quotations, and the contradictory and unsettled status of the Court of Justice as sensu lato constitutional court of the European legal space.

Are Rules Governing the Use of Precedent Necessary?

This paper addresses the issue of the necessary or contingent nature of the rules governing the use of precedent. The author argues that the rules governing the use of precedent in lato sensu (the rules that define the legal operation of judicial precedent) is a necessary rule of legal systems. However, legal systems have three different (exclusive and exhaustive) kinds of rules governing the use of precedent: a) binding rules governing the use of precedent, b) rules admitting the use of precedent and c) rules rejecting the use of precedent. The main conclusion is that whether for conceptual reasons of conferring power or for the centrality of the rule of law in current legal systems, when a legal system does not define the legal operation of judicial precedents, it can be said say there are (implicit) rules rejecting the use of precedent.

On the Rule and the Use of Precedents: Brief Comments on the Works of Fabio Pulido Ortiz and Silvia Zorzetto

It filled me with pleasure to be asked by Problema editor-in-chief Sandra Gómora Juárez to lead a discussion on the theories and doctrine on precedent in our context alongside Prof. Marina Gascón Abellán. Besides the undeniable and recognized prestige of the Problema journal, there was also the possibility of working with Prof. Marina Gascón again and with Sandra Gómora for the first time. It was also an opportunity to discuss issues regarding precedent with old friends like Flavia Carbonell, Fabio Pulido and Silvia Zorzetto, and exchange opinions with new ones like Rodrigo Camarena. On this occasion, I would like to comment specifically on the works of Prof. Fabio Pulido Ortiz and Prof. Silvia Zorzetto, both of which are of unquestionable quality. The article by Prof. Pulido Ortiz of the Universidad de la Sabana in Colombia is a work of analytical finesse and subtlety that discusses some fundamental problems of legal theory from the standpoint of the theory of precedent. Prof. Silvia Zorzetto from Università Statale di Milano has conducted an analytical and metalinguistic survey of the use of precedents in Italy, particularly at the Italian Sezioni Unite Civili della Corte di Cassazione. This work is priceless not only in terms of its value as a study of (internal) Italian legal culture, but also because the analysis can be generalized, at least in part, to explain how precedents are used in civil law systems.

Beyond transplantation and hybridisation: the distinctiveness of the System of Case Guiding

ABSTRACT Two paradigms are dominant in the international discourse on the System of Case Guiding (‘SCG’). The first ‘transplantation’ paradigm posits that the SCG is a straightforward transplant of the Anglo-American system of common law. The second ‘hybridisation’ paradigm views the SCG as a distinct but inferior common law, held back by its ‘Chinese characteristics’. These paradigms are challenged as being partial, outdated and inaccurate accounts of the SCG on two tiers. On a comparative and theoretical tier, this article builds upon the foundations of three concepts to mount its sustained critique. First, preferring Teubner’s description of legal change and reform as proceeding by legal ‘irritation’, it is argued that the notion of ‘transplantation’ is too blunt an account of how contemporary legal reform within the People’s Republic of China (‘PRC’) has sought to learn from and build upon the experiences of other legal systems. Second, accepting Santos’s call for a decentred approach to globalisation, the development of the SCG is situated foremost within its local context, instead of by reference to foreign systems of precedent. In doing so, this article moves beyond the old paradigms of ‘transplantation’ and ‘hybridisation’ towards a recognition of the distinctiveness of the SCG as an autochthonous innovation of the Chinese legal community that has been precisely tailored to its unique conditions. Third and finally, applying the concept of legal plurality to the practice of using Guiding Cases and precedent more generally, it is recognised that the development of the SCG has been driven, not only by the top-down actions of the Supreme People’s Court (‘SPC’), but also by its synergistic interaction with the bottom-up use of precedent by the wider legal community of litigants and legal professionals. Freed from the conceptual burdens of these two paradigms, this article proceeds to advance this theoretical basis for understanding the SCG by reference to an empirical analysis of three Guiding Cases – Numbers 24, 15 and 9. The first two are the most highly cited Guiding Cases; the third was one of the most often cited Guiding Cases as well, before losing its guiding effect. By reference to these three case studies, which involved analysing 939 judicial decisions, this article constructs a pluralistic account of the evolving judicial practice of referencing Guiding Cases. First, it is found that the distinctiveness of the SCG stems from the referent function of Guiding Cases, which is at the core of its judicial practice. This referent function is evident from the vast majority of judicial decisions that cite or refer to one of the three Guiding Cases as a formal authority for reaching their conclusion, without more. Second, however, it is also found that while this function of Guiding Cases might be the dominant form of judicial practice at this moment, this practice is not monolithic and is in fact changing at the margins. A small minority of cases since 2016 are illustrative of the potential trajectories of evolution for the next ten years of the SCG and the judicial practice of referencing Guiding Cases. These cases have evinced a greater willingness by courts to engage more meaningfully with precedent-based forms of reasoning, such as arguing from the facts of a case and arguing from the principles stated therein. This greater engagement has not only been driven by top-down mandates to search for and reference a wider variety of cases beyond Guiding Cases, but has also been driven by the bottom-up use of precedents by litigants in presenting their legal arguments before the courts. While these marginal practices are still in their infancy, the empirical analysis provides evidence of a complex, complicated and pluralistic practice of greater and more substantial reliance on Guiding Cases within the PRC.

How to Treat The WTO's Problem with Precedent

This Article argues that the World Trade Organization’s Appellate Body (AB), or a successor body, must become more transparent in justifying its decision to rely (or not) on prior decisions. The AB’s practice of precedent — which the United States cited as a cause of its decision to paralyze the AB by blocking new appointments — is similar to how it has approached “likeness” in nondiscrimination cases. It placed a lot of weight on whether two cases (or products) are sufficiently similar to be compared, and it spent relatively less time substantively justifying its treatment of prior cases. Because the WTO does not have a system of stare decisis, the AB and WTO panels generally must explain why they find prior decisions persuasive, rather than simply relying on similarity to justify carrying prior interpretations forward. The Article begins by examining and evaluating the results of a new study from Jeffrey Kucik and Sergio Puig, the first study to use a large dataset to study the AB’s use of precedent. The Article then advances a framework for how WTO dispute panels should evaluate the relevance of prior cases in future disputes. The proposed approach would treat the comparison of cases as merely a threshold inquiry. If two cases are sufficiently alike and one party contests the applicability of the prior decision, then a tribunal must substantively justify its treatment of the prior decision in light of a variety of factors. In some instances, the result may be that the AB or a panel acknowledges that a prior interpretation was wrong and should not be followed. Openly analyzing the persuasive value of prior cases, and acknowledging when those cases should not be followed, would better promote the goals of relying on prior decisions — promoting predictability, transparency, and coherence in the law’s application — as compared to deference to prior decisions based only on the similarity of two disputes.

Effecting Consistency in Investor-State Dispute Settlement Through the Introduction of Precedent in a Multilateral Investment Court

In recent years, the current Investor-State Dispute Settlement (ISDS) system has been a subject of reform discussions triggered by several factors, amongst which includes the lack of consistency in ISDS decisions commonly rendered by arbitration tribunals. This undesirable fact places the current ISDS system in conflict with essential rule of law values such as stability, reliability, predictability, and equality - which inevitably diminish the legitimacy of the current system. Undeniably, the un-uniform investment treaties underlying ISDS decisions is a valid justification for divergent outcomes, however, the recognition that a majority of investment treaties share similar if not identical legal standards also makes the argument for consistent ISDS decisions legitimate and in fact necessary to foster the harmonious development of investment law across the network of identical treaty standards. To this end, the use of “precedent” is critical in achieving the aforesaid goal. Notably, albeit informally, the use of precedent is already a recognised practice in ISDS, yet inconsistent decisions persist. As a turning point, this article advocates that consistency in ISDS decisions can be best achieved through the “formal introduction of a system of precedent”, in “a Multilateral Investment Court (MIC)”, which is possible without jeopardizing the inherent differences contained in International Investment Agreements (IIA).

El precedente de la Corte Suprema de Justicia de la Nación Argentina

This paper deals with precedent in the Argentine Supreme Court by describing how it works both vertically and horizontally. It explains the current doctrine of precedent the Court develo-ped through its case law and analyses its workability in some recent cases. Finally, it examines some necessary techniques related to a proper use of precedent, such as the acknowledgment of the material facts, the structure and clarity of judicial decisions, its publication, and the identification of legitimate (and illegitimate or, at least, questionable) factors of overruling.

The Supreme Court's decision in the model case as a judicial precedent in the legal system of Ukraine

The publication deals with the concept and features of the Supreme Court's decision in the model case as a judicial precedent. The judicial precedent in the legal system of Ukraine is the Supreme Court's decision in an exemplary case, which contains conclusions on the application of the rules of law and a formulated rule. After the adoption of the new version of the Code of Administrative Judiciary of Ukraine and the direct introduction of the mechanism of decision-making in the model case and the actual systematic review by the courts of first instance of numerous typical cases on the basis of the model case, it can be concluded that in the legal system judicial precedent becomes a source of law in the administrative proceedings. In the countries of the Anglo-American system of law, the Supreme Court ensures the unity of the case law at the highest level. The precedent system is vertical and requires judges to adhere to the decisions of high courts. Today in Ukraine, belonging to the countries of the Romano-German legal family, one can already speak about the official use of precedents in the administrative process, namely the informal application of precedents in the decisions the Supreme Court in model cases. The main features of judicial precedent are the fact that it is created when considering a particular case, combines individual-legal and normative-legal features, dynamism and a high degree of specification of the legal norm, which is objectified in the judicial precedent. Such decisions are always reasoned, authoritative and public. A model decision contains the circumstances of a model case, which determine the typical application of substantive law and the procedure for applying such rules by courts and the subject of power, as well as the decisions in exemplary cases substantially optimize, refine and facilitate the judicially procedure in typical cases by a regional courts. Key words: court precedent, model case; a typical case; Supreme Court decision in an exemplary case, source of law.

How the WTO Appellate Body Drove Itself Into a Corner

This paper argues that, by committing a series of egregious interpretative errors in cases with important policy consequences and by adopting an overly strict approach to the use of precedent, the AB drove itself into the crisis it is currently going through. It also proposes a blueprint to resolve the ongoing AB crisis.

An Evolutionary Perspective on Contracting: Evidence from Poison Pills

The law and economics literature on contract theory widely recognizes that contracts are costly to write and therefore are incomplete. As a result, contracts cannot cover all future contingencies, opening parties up to ex post opportunism and renegotiation. These problems posed by contractual incompleteness and the economic arrangements parties design to cope with them is a major research area in law and economics, especially in the theory of the firm. The overall upshot of contractual incompleteness is that parties design economic solutions to deal the problem of underinvestment that incomplete contracts create. The economic institutions hypothesized in this literature, however, are not the only responses to the problem of transaction costs and resulting incomplete contracts. Contract drafters have their own legal responses to economize on the costs of foreseeing all contingencies and writing terms to deal with them. Most importantly, contract drafters use a precedent document as a template in virtually all major transactions as a heuristic to reduce the costs of foreseeing all contingencies and drafting provisions to deal with them. The use of precedent documents is a rational response to the prohibitive costs of drafting complete contracts from scratch. However, precedent-based drafting itself inherits a transaction cost problem, because there are costs associated with understanding the purposes and implications of the terms contained in precedent documents. As a result, terms from precedent documents are copied, modified, and recopied, sometimes indiscriminately. A growing empirical literature has documented this problem, suggesting that contracts are path dependent, varying not only according to the needs of a particular transaction but also according to the line of descent the contract language followed. Thus, while the economic theory envisions contracts with (incomplete) provisions rationally adapted to conscious ends, the path dependency literature sees both incompleteness and vestigial terms, with “drift” rather than “design” as the driver of much of the change in transactional legal documents. The copying, editing, and recopying of transactional text suggests a biological analogy drawn from molecular evolution. A process very similar to the copying, editing, and recopying occurs in the process of propagation of genetic information. Like the legal setting, the variation in DNA over time is partly the result of selection and partly the result of “drift,” and a parallel debate exists over the relative extent of the sources of variation. This paper presents evidence that contract provisions “evolve” in a manner much like that biological genetic sequences, in a process that is at least partly one of drift. This paper illustrates this process of “genetic” drift in the text of transactional legal documents by exploiting a unique observational setting—stockholder rights agreements (or “poison pills”). Because the poison pill was created at a specific point in time in the recent past, its descent can be traced from the very first ancestor to the present versions, allowing clear illustration of the process of change over time. Using a computer analysis of the terms of all extant poison pills, this paper reconstructs a “phylogenetic” tree of all extant poison pills showing the ancestry of each document. The preliminary results suggest most changes in the text of transactional documents do not rapidly respond to exogenous shocks or merely passage of time, but instead drift directly in proportion to generations elapsed since the ancestral document. This paper is only a preliminary exploration of an evolutionary metaphor for contract language, but suggests a number of potential avenues for research. In particular, a model of the “mutations” or changes in legal language is necessary to increase the resolution of this analysis. Such a model will allow a better understanding of how legal provisions change over time, the effects that those changes create, and perhaps increase the quality of judicial interpretation of gaps and ambiguous contract provisions.

An Overview of the French Judicial System and the Rule of Stare Decisis

In this article, the author reviews the French judicial system, and its case law, with regard to how the system affects taxation, with emphasis on the use of precedents.

The Shape and Structure of the ‘Usable Past’: An Empirical Analysis of the Use of Precedent in International Adjudication

Abstract How do international adjudicators use precedent? This question has been addressed several times in the literature, but doctrinal accounts have generally failed to consider the aggregate dimension of the phenomenon. This article seeks to provide an alternative outlook by offering a large-scale computational analysis of the body of jurisprudence of three international fora (the ICJ, the WTO Appellate Body and investment arbitration tribunals) and comparing their citation patterns with those of other judicial bodies—national and international. Building on a very large dataset (comprising over 200,000 citations), it employs network analysis tools to measure the evolution of international law citation networks. It then unpacks this emerging complexity by considering what, in a precedent, holds ‘citing value’, highlighting the expansion of the range of precedential resources as well as the consecration of established authorities. Finally, the article considers three examples of computational analysis of citations to precedent in order to better gauge the level of engagement with the past.

The Role of Precedent and Stare Decisis in the World Trade Organization's Dispute Settlement Body

AbstractThe World Trade Organization was established in 1995 and brought together countries from around the world for the purpose of fairly regulating the trade of goods, services, and intellectual property between its member states. While treaties and other trade agreements have existed between countries for hundreds of years, the WTO's most significant innovation is its dispute settlement process through the Dispute Settlement Body. Countries agree to be bound to the decisions of the DSB upon their admittance into the WTO. The DSB is a two-tiered adjudicative system consisting of the lower panels and the higher Appellate Body.The United States, under both the Obama and Trump administrations, has blocked the appointment of AB judges. This tactic has limited the number of active judges to three. The AB normally has seven members. The United States has listed a number of reasons for their boycott of the system, among them is that the AB is functioning as if its reports are to be binding precedent on the lower panel and to future DSB cases, in a manner similar to stare decisis. This issue has been observed over the years and there is conflict between interpretations of precedent under Article 3:2 of the Dispute Settlement Understanding and Article IX:2 of the WTO Agreement. Caselaw of the DSB from over the years has also raised interesting questions and the appearance of the use of precedent.This article will be examining the historical fundamentals and use of precedent and the doctrine of stare decisis. It will then turn into an examination of the institutional and regulatory framework of the WTO, particularly Article 3:2 of the DSU and Article IX:2 of the WTO Agreement, and whether it allows or leaves room for a system of binding precedent. Finally, jurisprudence of the DSB will be surveyed for evidence of this system. Reports that will be examined are Japan-Alcoholic Beverages, India-Patents, India-Autos, and Australia-Plain Packaging Tobacco.