Judicial Architecture at the Cross-Roads: Private Parties and Challenge to Ec Measures Post-Jégo Quéré

2001 ◽  
Vol 4 ◽  
pp. 413-444 ◽  
Author(s):  
Angela Ward
Keyword(s):  
Ice Cream ◽  
Major Change ◽  
Case Law ◽  
Food Trade ◽  
Locus Standi ◽  
The Future ◽  
The Law ◽  
The Cross ◽  
Court Of First Instance

This article maps out the channels at the disposal of private parties for challenging the legality of EC measures, and attempts some predictions of the future shape and content of this plank of the EU’s judicial architecture. This area of the law is in a state of flux, particularly in the light of rulings such as UEAPME v. Council, Masterfoods Limited v. HB Ice Cream, Fresh Marine Company AS v. Commission, Laboratoires Pharmaceutiques Bergaderm SA, in liquidation, and Jean-Jacques Goupil v. Commission, Bocchi Food Trade International GmbH v. Commission, and most recently, and significantly, Jégo Quéré and Cie SA v. Commission. In this latter ruling the Court of First Instance prescribed a major change to the rules on locus standi under Article 230(4) of the EC Treaty, a hitherto much maligned aspect of the case law, by relaxing the requirement of ‘individual concern’ laid down in that article.

Judicial Architecture at the Cross-Roads: Private Parties and Challenge to Ec Measures Post-Jégo Quéré

2001 ◽  
Vol 4 ◽  
pp. 413-444 ◽  
Author(s):  
Angela Ward
Keyword(s):  
Ice Cream ◽  
Major Change ◽  
Case Law ◽  
Food Trade ◽  
Locus Standi ◽  
The Future ◽  
The Law ◽  
The Cross ◽  
Court Of First Instance

This article maps out the channels at the disposal of private parties for challenging the legality of EC measures, and attempts some predictions of the future shape and content of this plank of the EU’s judicial architecture. This area of the law is in a state of flux, particularly in the light of rulings such asUEAPMEv.Council, Masterfoods Limitedv.HB Ice Cream, Fresh Marine Company ASv.Commission, Laboratoires Pharmaceutiques Bergaderm SA, in liquidation, andJean-Jacques Goupilv.Commission, Bocchi Food Trade International GmbHv.Commission, and most recently, and significantly,Jégo Quéré and Cie SAv.Commission. In this latter ruling the Court of First Instance prescribed a major change to the rules onlocus standiunder Article 230(4) of the EC Treaty, a hitherto much maligned aspect of the case law, by relaxing the requirement of ‘individual concern’ laid down in that article.

scholarly journals Private Prosecutions in Mauritius: Clarifying Locus Standi and Making the Director of Public Prosecutions more Accountable

2017 ◽  
Vol 10 (1) ◽  
pp. 1-34
Author(s):  
Jamil Ddamulira Mujuzi
Keyword(s):  
Supreme Court ◽  
Case Law ◽  
African Countries ◽  
Locus Standi ◽  
Statutory Requirement ◽  
The Supreme Court ◽  
Lower Courts ◽  
The Law ◽  
The Right

Case law shows that private prosecutions have been part of Mauritian law at least since 1873. In Mauritius there are two types of private prosecutions: private prosecutions by individuals; and private prosecutions by statutory bodies. Neither the Mauritian constitution nor legislation provides for the right to institute a private prosecution. Because of the fact that Mauritian legislation is not detailed on the issue of locus standi to institute private prosecutions and does not address the issue of whether or not the Director of Public Prosecutions has to give reasons when he takes over and discontinues a private prosecution, the Supreme Court has had to address these issues. The Mauritian Supreme Court has held, inter alia, that a private prosecution may only be instituted by an aggrieved party (even in lower courts where this is not a statutory requirement) and that the Director of Public Prosecutions may take over and discontinue a private prosecution without giving reasons for his decision. However, the Supreme Court does not define “an aggrieved party.” In this article the author takes issue with the Court’s findings in these cases and, relying on legislation from other African countries, recommends how the law could be amended to strengthen the private prosecutor’s position.

Interlocking Legal Orders in the European Union and Comparative Law

2003 ◽  
Vol 52 (4) ◽  
pp. 873-906 ◽  
Author(s):  
Koen Lenaerts
Keyword(s):  
European Union ◽  
Comparative Law ◽  
Case Law ◽  
The European Union ◽  
External Observer ◽  
Community Law ◽  
Court Of Justice ◽  
The Law ◽  
Court Of First Instance ◽  
Community Courts

Even if an external observer who takes an interest in the case-law of the Court of Justice of the European Communities and of the Court of First Instance of the European Communities may not have such an impression at first sight, comparative law plays a central role in the activities of these courts. It means much more than simply looking at solutions given to certain problems in the legal orders of the Member States. As a former president of the Court of Justice rightly observed, recourse to comparative law is for the Court of Justice essentially a method of interpretation of Community law itself.1 For the Court of Justice and the CFI (below often referred to as ‘Community judge’ or ‘Community courts’), it is one method amongst other methods of interpretation of the law (such as literal, exegetic, historical, systematic interpretation) and it constitutes a tool for establishing the law.2

scholarly journals Regarding the possibility of postponing or deferring the execution of the decision of the international commercial arbitration court: legal regulation and case law

2021 ◽  
pp. 85-94
Author(s):  
Susanna Suleimanova
Keyword(s):  
Case Law ◽  
Legal Regulation ◽  
Court Decisions ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
The Law ◽  
Civil Cases ◽  
Court Of First Instance ◽  
The Postponement ◽  
Court Practice

The article deals with problematic issues related to the postponement or postponement of the execution of the decision of the International Commercial Arbitration Court. The analysis of the norms contained in Chapter 3 "Recognition and granting permission to enforce the decision of international commercial arbitration" of Chapter 9 of the CPC of Ukraine shows that the legislator imperatively regulates the powers of the court when considering applications for recognition and granting permission to enforce international commercial arbitration. However, in this chapter there is no rule that would allow the court to decide on the postponement or installment of the execution of the decision of international commercial arbitration in the case of granting permission to execute it. However, Article 435 of the CPC of Ukraine, which is placed in Section 6 of the CPC of Ukraine "Procedural issues related to the execution of court decisions in civil cases and decisions of other bodies (officials)", the rules of which are applied at the stage of execution of court decisions in civil cases and decisions of other bodies (officials), establishes the possibility of deciding on the postponement or installment of execution, but the powers in this regard are vested only in the court that considered the case as a court of first instance. The norm identical in content is enshrined in Article 33 of the Law of Ukraine "On Enforcement Proceedings". In this regard, in practice, the question arises: can the court that considered the application for recognition and permission to enforce the decision of international commercial arbitration, be considered a court that considered the case as a court of first instance, and, accordingly, decide on adjournment or deferral of execution of the decision of the international commercial arbitration court? Keywords: postponement of execution of the decision, international commercial arbitration, court practice.

IN NOVUM RESTRICTION IN LITHUANIAN CIVIL PROCEDURE LAW

2021 ◽  
Vol 11 (5) ◽  
pp. 260-275
Author(s):  
V. NEKROŠIUS
Keyword(s):  
Case Law ◽  
Civil Procedure ◽  
Daily Work ◽  
Civil Proceedings ◽  
Long Time ◽  
The Law ◽  
The Republic ◽  
Grand Duchy Of Lithuania ◽  
The Right ◽  
Court Of First Instance

This article examines a relatively new institute of Lithuanian civil proceedings – legal restrictions on the late submission of evidence in both first instance and appellate courts. These restrictions were first established in the new Civil Procedure Code (CPC) which was adopted by Seimas of the Republic of Lithuania on 28 February 2002 (entered into force on 1 January 2003). Until then such restrictions in Lithuanian civil procedure law were not known from the time of famous Statutes of the Grand Duchy of Lithuania. Therefore, it seems natural that this innovation has paved the way for its real application in the courts for more than a decade. This article provides a consistent analysis of the case law (starting with the rulings of the Supreme Court of Lithuania in which the restrictions established in the law were practically denied, and up to the rulings of the last year, which already recognized the right of the courts in certain cases to refuse to accept evidence which was submitted too late). This article also reveals the aims of the CPC authors which were aimed at establishing the first instance court’s right to refuse to accept evidence which was submitted too late and system of limited appeal which establishes a general prohibition (with certain exceptions) to present evidence that was not examined in the court of first instance. One of the most important aims is the concentration of the proceedings, the prevention of abuse of procedural rights and the establishment of the first instance as the main judicial instance. The appeal procedure in the new CPC is already regarded not as a repetition or continuation of the proceedings at first instance, but as a review of the legality and validity of an existing, albeit unenforced, decision of the court of first instance. The author acknowledges that although it took a long time for the relevant provisions of the law to be actually applied in the case law, today their application is already noticeable in the daily work of courts. This leads to the conclusion that Lithuanian courts have adapted to the new CPC system and its philosophy.

Romans 8: Dead to the Law, Alive in the Spirit

2013 ◽  
Vol 9 ◽  
Author(s):  
Tyler Lohse
Keyword(s):  
Case Law ◽  
Legal Interpretation ◽  
Philosophy Of Law ◽  
Interpretive Theory ◽  
The Law ◽  
Interpretive Strategies ◽  
Civil Death ◽  
Romans 8

This essay comments on the nature of the language of the law and legal interpretation by exam- ining their effects on their recipients. Two forms of philosophy of law are examined, legal positiv- ism and teleological interpretive theory, which are then applied to their specific manifestations in literature and case law, both relating to antebellum slave law. In these cases, the slave sustains civil death under the law, permissible by means of these legal interpretive strategies.

The Constitutional Principle of Accountability: A Study of Contemporary South African Case Law

2018 ◽  
Vol 33 (1) ◽  
Author(s):  
Chuks Okpaluba
Keyword(s):  
Judicial Review ◽  
Police Officers ◽  
Public Procurement ◽  
Case Law ◽  
The State ◽  
Constitutional Principle ◽  
Starting Point ◽  
The Law ◽  
Constitutional Right ◽  
The Many

‘Accountability’ is one of the democratic values entrenched in the Constitution of South Africa, 1996. It is a value recognised throughout the Constitution and imposed upon the law-making organs of state, the Executive, the Judiciary and all public functionaries. This constitutional imperative is given pride of place among the other founding values: equality before the law, the rule of law and the supremacy of the Constitution. This study therefore sets out to investigate how the courts have grappled with the interpretation and application of the principle of accountability, the starting point being the relationship between accountability and judicial review. Therefore, in the exercise of its judicial review power, a court may enquire whether the failure of a public functionary to comply with a constitutional duty of accountability renders the decision made illegal, irrational or unreasonable. One of the many facets of the principle of accountability upon which this article dwells is to ascertain how the courts have deployed that expression in making the state and its agencies liable for the delictual wrongs committed against an individual in vindication of a breach of the individual’s constitutional right in the course of performing a public duty. Here, accountability and breach of public duty; the liability of the state for detaining illegal immigrants contrary to the prescripts of the law; the vicarious liability of the state for the criminal acts of the police and other law-enforcement officers (as in police rape cases and misuse of official firearms by police officers), and the liability of the state for delictual conduct in the context of public procurement are discussed. Having carefully analysed the available case law, this article concludes that no public functionary can brush aside the duty of accountability wherever it is imposed without being in breach of a vital constitutional mandate. Further, it is the constitutional duty of the courts, when called upon, to declare such act or conduct an infringement of the Constitution.

Formation of Contract and Third Parties in Cambodia

2018 ◽  
Author(s):  
Ly Tayseng
Keyword(s):  
Academic Writing ◽  
Case Law ◽  
Civil Code ◽  
Third Parties ◽  
Third Party ◽  
The Third ◽  
Contract Formation ◽  
The Law ◽  
The Right ◽  
Formal Requirements

This chapter gives an overview of the law on contract formation and third party beneficiaries in Cambodia. Much of the discussion is tentative since the new Cambodian Civil Code only entered into force from 21 December 2011 and there is little case law and academic writing fleshing out its provisions. The Code owes much to the Japanese Civil Code of 1898 and, like the latter, does not have a requirement of consideration and seldom imposes formal requirements but there are a few statutory exceptions from the principle of freedom from form. For a binding contract, the agreement of the parties is required and the offer must be made with the intention to create a legally binding obligation and becomes effective once it reaches the offeree. The new Code explicitly provides that the parties to the contract may agree to confer a right arising under the contract upon a third party. This right accrues directly from their agreement; it is not required that the third party declare its intention to accept the right.

Contracts for the Benefit of Third Parties in Japan

2018 ◽  
Author(s):  
Masami Okino
Keyword(s):  
Case Analysis ◽  
Case Law ◽  
Contract Law ◽  
Civil Code ◽  
Third Parties ◽  
Third Party ◽  
German Model ◽  
Recent Debate ◽  
The Law

This chapter discusses the law on third party beneficiaries in Japan; mostly characterized by adherence to the German model that still bears an imprint on Japanese contract law. Thus, there is neither a doctrine of consideration nor any other justification for a general doctrine of privity, and contracts for the benefit of third parties are generally enforceable as a matter of course. Whether an enforceable right on the part of a third party is created is simply a matter of interpretation of the contract which is always made on a case-by-case analysis but there are a number of typical scenarios where the courts normally find the existence (or non-existence) of a contract for the benefit of a third party. In the recent debate on reform of Japanese contract law, wide-ranging suggestions were made for revision of the provisions on contracts for the benefit of third parties in the Japanese Civil Code. However, it turned out that reform in this area was confined to a very limited codification of established case law.

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