Voces y miradas. Agentes sociales indígenas en el entramado judicial : Ciudad y campaña de Buenos Aires en el período tardocolonial

Este trabajo se ocupa de examinar el accionar de los agentes sociales indígenas atrapados en el entramado judicial, ya sea en calidad de damnificados o sospechados de un delito, en la campaña y a ciudad de Buenos Aires hacia fines del período colonial. El objetivo es indagar en la configuración y resolución de los conflictos que involucren a indígenas, observando tanto su posicionamiento como el de los agentes judiciales, eclesiásticos o particulares con cierto poder en el ámbito local que se encuentren involucrados en estas causas. Este análisis nos facilitará la entrada al entretejido social de la época, proporcionándonos claves para comprenderlo, a la vez que develará una diversidad de voces y miradas implicadas en el proceso de configuración y judicialización de los delitos

Reforma del estado como mecanismo de control en democracia delegativa: caso reforma judicial Ecuador 2007-2014

The object of this doctoral thesis is the analysis of the political and administrative purpose that is given to the reform process of a vital sector of State powers within the framework of delegate democracy, such as the administration of Justice. The object is also to analyze if State reform in a diminished or non-liberal surrounding increase or improve conditions of democracy in a given situation, based on the constitutional “what should be”, or if what occurs is a process of “seizure” of the functions of State, which becomes an institutional risk. Finally, we will examine the real and effective existence of a horizontal accountability process through the use of institutional resources, which would evidence the existence of an incomplete model of democracy. This analysis implies the relationship between two institutions within public administration: State Reform, as an act of change in State structure in order to improve qualitatively the outcomes and outputs of public policies, and in sum, to make the system work better. This, as it will be examined later, is the case of Latin America as a response of the State to three processes in crisis: fiscal, as in government intervention or in the form of bureaucratic administration. In that scheme of things, this thesis examines the present state of the art in public administration science of this process to prove that in delegate democracy, this type of instruments disregard the constitutive elements of democracy and serve, especially in critical areas of the administration, allowing for Power to dismiss Law. This research seeks to contribute towards an area seldom analyzed regarding public administration doctrine under the light of the theory of law, which is the connection between previous conditions or principal inputs of an execution process of a democracy and, on the other hand, regarding the effects of introducing a reform within models of a changing democracy and new concepts of the rule of law. While reviewing writings regarding State reform, it is clear that no approximations have been previously made in reference to prior conditions of the political system in order to begin operating a reform which respects fundamental rights as an object of this procedure. Furthermore, no analysis has been found regarding structural change of strategic areas in State services as to the effect caused on democratic exercise and the outcome in an open society...

The Judicial Dimension of the European Neighbourhood Policy. EU Diplomacy Paper 08/2013, November 2013

In this paper, the expression “neighbourhood policy” of the European Union (EU) is understood in a broad way which includes the members of the European Free Trade Association (EFTA) contracting parties to the European Economic Area (EEA), the EFTA State Switzerland, candidate states, the countries of the European Neighbour-hood Policy (ENP), and Russia. The European Court of Justice (ECJ) is the centre of gravity in the judicial dimension of this policy. The innermost circle of integration after the EU itself comprises the EFTA States who are party to the European Economic Area. With the EFTA Court, they have their own common court. The existence of two courts – the ECJ and the EFTA Court – raises the question of homogeneity of the case law. The EEA homogeneity rules resemble the ones of the Lugano Convention. The EFTA Court is basically obliged to follow or take into account relevant ECJ case law. But even if the ECJ has gone first, there may be constellations where the EFTA Court comes to the conclusion that it must go its own way. Such constellations may be given if there is new scientific evidence, if the ECJ has left certain questions open, where there is relevant case law of the European Court of Human Rights or where, in light of the specific circumstances of the case, there is room for “creative homogeneity”. However, in the majority of its cases the EFTA Court is faced with novel legal questions. In such cases, the ECJ, its Advocates General and the Court of First Instance make reference to the EFTA Court’s case law. The question may be posed whether the EEA could serve as a model for other regional associations. For the ENP states, candidate States and Russia this is hard to imagine. Their courts will to varying degrees look to the ECJ when giving interpretation to the relevant agreements. The Swiss Government is – at least for the time being – unwilling to make a second attempt to join the EEA. The European Commission has therefore proposed to the Swiss to dock their sectoral agreements with the EU to the institutions of the EFTA pillar, the EFTA Surveillance Authority (ESA) and the EFTA Court. Switzerland would then negotiate the right to nominate a member of the ESA College and of the EFTA Court. The Swiss Government has, however, opted for another model. Swiss courts would continue to look to the ECJ, as they did in the past, and conflicts should also in the future be resolved by diplomatic means. But the ECJ would play a decisive role in dispute settlement. It would, upon unilateral request of one side, give an “authoritative” interpretation of EU law as incorporated into the relevant bilateral agreement. In a “Non-Paper” which was drafted by the chief negotiators, the interpretations of the ECJ are even characterised as binding. The decision-making power would, however, remain with the Joint Committees where Switzerland could say no. The Swiss Government assumes that after a negative decision by the ECJ it would be able to negotiate a compromise solution with the Commission without the ECJ being able to express itself on the outcome. The Government has therefore not tried to emphasise that the ECJ would not be a foreign court. Whether the ECJ would accept its intended role, is an open question. And if it would, the Swiss Government would have to explain to its voters that Switzerland retains the freedom to disregard such a binding decision and that for this reason the ECJ is not only no foreign court, but no adjudicating court at all.

The German Constitutional Court’s decision about the European Central Bank’s OMT [Outright Monetary Transactions] mechanism: A masterpiece of judicial arrogance. European Policy Briefs No. 30, April 2014

The German Constitutional Court (BVG) recently referred different questions to the European Court of Justice for a preliminary ruling. They concern the legality of the European Central Bank’s Outright Monetary Transaction mechanism created in 2012. Simultaneously, the German Court has threatened to disrupt the implementation of OTM in Germany if its very restrictive analysis is not validated by the European Court of Justice. This raises fundamental questions about the future efficiency of the ECB’s monetary policy, the damage to the independence of the ECB, the balance of power between judges and political organs in charge of economic policy, in Germany and in Europe, and finally the relationship between the BVG and other national or European courts.

The gendered effects of family migration law: contextual interpretation as a possible judicial remedy

At all normative levels, family migration law can disproportionally and negatively affect immigrant women’s rights in this field, producing gendered effects. In some cases, such effects are related to the normative and judicial imposition of unviable family-related models (e.g., the ʻgood mother ̕ the one-breadwinner family, or a rigid distinction between productive and reproductive work). In other cases, they are due to family migration law’s overlooking of the specific needs and difficulties of immigrant women, within their families and in the broader context of their host countries’ social and normative framework.To effectively expose and correct this gender bias, in this article I propose an alternative view of immigrant women’s right to family life, as a cluster of rights and entitlements rather than as a mono-dimensional right. As a theoretical approach, this construction is better equipped to capture the complex experiences of immigrant women in the European legal space, and to shed light on the gendered effects generated not by individual norms but by the interaction of norms that are traditionally assigned to separated legal domains (e.g., immigration law and criminal law). As a judicial strategy, this understanding is capable of prompting a consideration by domestic and supranational courts of immigrant women not as isolated individuals, but as ‘individuals in context’. I shall define this type of approach as ‘contextual interpretation’, understood as the consideration of immigrant women in the broader contexts of their families, their host societies and the normative frameworks applicable to them. Performed in a gendersensitive manner, a contextual judicial interpretation has the potential to neutralize the gendered effects of certain family migration norms. To illustrate these points, I will discuss selected judicial examples offered by the European Court on Human Rights, as well as from domestic jurisdictions of countries with a particularly high incidence of immigrant women (Italy and Spain).

Territorialisation and power in Portuguese America. The creation of comarcas (16th-18th centuries)

The general aim of this article is to analyse the political organisation of the territory in Portuguese America from the start of the building up of the Crown judiciary system from in the 16th to the 18th centuries and to look into the causes of its belatedness in comparison to what happened in Spanish America. The focus will however be on the comarcas through the reconstitution of the process leading to the setting up of these judiciary divisions. Four stages of this process will be identified and discussion will ensue over the social and political contexts in which these political and administrative novelties came to happen. It is claimed that the delay in the structuring of the judicial network in the States of Brazil and Maranhão stems from the fact that the Portuguese advance into the territories took place at a later stage. The comparisons between the two systems will also bring other differences to the fore, not least the greater rigidity of the Spanish model in contrast to the more experimental character of the Portuguese one, and the resilience found to exist in the donatarial system. It is also worth to point out that given solutions were the result of the will of central power as much as of local initiative, and it is suggested that the building up of the crown’s political apparatus (in which the judiciary network is included) brought about the connivance,albeit ephemeral, of social interests which are considered contradictory or irreconcilable by some authors.

What do you do with a High Court decision you don’t like? Legislative, judicial and academic responses to Gambotto v WCP Ltd

The decision of the High Court of Australia in Gambotto v WCP Ltd wasboth controversial and widely debated. Some saw the decision as radically altering the balance of power in corporate law by granting minority shareholders extensive new powers to prevent the compulsory acquisition of their shares and thereby impeding commercial transactions that would benefit companies. There was also concern that the principles developed by the High Court for compulsory acquisition of shares undertaken by way of amendment of the corporate constitution would apply to other forms of compulsory acquisition, and corporate law more generally, again impeding many types of corporate transactions.We analyse the responses to the High Court decision. The decision had the potential to have a significant influence on Australian corporate law and the way corporate transactions involving compulsory share acquisitions are conducted. In particular, Gambotto was considered in more than 50 subsequent judgments giving many judges the opportunity to extend the Gambotto principles into new areas.We show that the responses to Gambotto were largely negative. Initial commentary in themedia and subsequent academic commentary was mostly critical. Almost uniformly, courts decided that the principles should not be extended.Parliament responded by enacting new provisions in the corporationslegislation facilitating the compulsory acquisition of shares and limiting the application of Gambotto. We document how courts and Parliamentresponded to a decision they did not like — a decision that had the potential to have major implications for corporate law and commercial transactions.We also analyse Gambotto by placing it in the broader political context ofthe role of the High Court at the time of the decision. Gambotto was decided when the High Court was in a period of unprecedented judicial activism.Subsequently, the High Court retreated from this judicial activism and weobserve similarities in how other courts restricted the application ofGambotto.