La extensión de la jurisprudencia a particulares por parte de las autoridades administrativas de conformidad con el artículo 102 de la ley1437 de 2011 : un análisis respecto del debido proceso ante un posible traslado de la función judicial a la administración

Estudio de la figura de la extensión de jurisprudencia por parte de la Autoridades Administrativas dispuesta en el artículo 102 de la Ley 1437, así como de sus antecedentes y de los problemas de constitucionalidad que comporta su inclusión en el ordenamiento jurídico colombiano.

Evaluation of the Role of Access Providers Discussion of Dutch Pirate Bay Case Law and Introducing Principles on Directness, Effectiveness, Costs, Relevance, and Time

Internet service providers (ISPs) play a pivotal role in contemporary society because they provide access to the Internet. The primary task of ISPs – to blindly transfer information across the network – has recently come under pressure, as has their status as neutral third parties. Both the public and the private sector have started to require ISPs to interfere with the content placed and transferred on the Internet as well as access to it for a variety of purposes, including the fight against cybercrime, digital piracy, child pornography, etc. This expanding list necessitates a critical assessment of the role of ISPs. This paper analyses the role of the access provider. Particular attention is paid to Dutch case law, in which access providers were forced to block The Pirate Bay. After analysing the position of ISPs, we will define principles that can guide the decisions of ISPs whether to take action after a request to block access based on directness, effectiveness, costs, relevance and time.

California digest supplement, 1915-1919; a digest of the cases decided by the Supreme and Appellate courts of California and by the federal courts on questions of California law since Kerr's California digest, as contained in Raymond's 1916 supplement and in the 1917-1919 California current digests, inclusive, up to volume 178 California Supreme court reports, volume 37 California Appellate reports, and up to 58 California decisions, page 137; California Appellate decisions, page 258; 182 Pacific reporter (California cases), page 991; 258 Federal reporter (California cases), page 161; 39 Supreme court reporter (California cases), page 568. With references to Ruling case law, and important notes in American decisions, American state reports, Annotated cases, Lawyers' reports annotated, and American law reports, also an alphabetical table, direct and reverse, of all cases digested, showing on what page and under what subject each case is found digested in this digest, and also where the various California cases are cited in annotations in "The American series of annotated reports".

Mode of access: Internet.

Accessing Legal Information in Catalonia. Open Acces to Legislation and Case Law

The article outlines free online legal resources to conduct research on Catalan and Spanish legislation and case-law. Most of these resources are primary sources made public by government bodies. The list shows how the Spanish and Catalan governments, in their attempt to promote equal access to legislation and case-law, cover the different jurisdictions. The text also mentions some resources to conduct historical legal research about legislation and case law, and some free legal private websites.

English Contract Law and the Great War: the development of a doctrine of frustration

This article examines changes that occurred in English contract law as a result of the demands made upon Great Britain by the Great War. The focus is on the development of the doctrine of frustration in English law. In particular, it is argued that the development of the doctrine of frustration was fashioned from internal legal forces in the form of both existing case law and emergency legislation in response to the demands placed upon the nation by a global war. The way in which the doctrine of frustration developed during the Great War arose as a direct result of the way in which Britain chose to meet the logistical demands created by the way it fought the Great War.

Compliance to law and effectiveness of the rule of law in Brazil

The goal of this paper is to debate the degree of effectiveness of the rule of law in Brazil, through a survey measuring perceptions, attitudes and habits of Brazilians in regard to compliance to law. The survey conducted in Brazil is based on the study conducted by Tom R. Tyler in the United States, entitled Why People Obey the Law? (New Haven, CT: Yale University Press, 1990). The main argument of Tyler´s study is that people obey the law when they believe it’s legitimate, and not because they fear punishment. We test the same argument in Brazil, relying on five indicators: (i) behavior, which depicts the frequency with which respondents declared to have engaged in conducts in disobedience to the law; (ii) instrumentality, measuring perception of losses associated with the violation of the law, specially fear of punishment; (iii) morality, measuring perception of how much is right or wrong to engage in certain conducts in violation of the law; (iv) social control, which measures perception of social disapproval of certain types of behavior in violation of the law, and (v) legitimacy, which measures the perception of respect to the law and to some authorities. Results indicate that fear of sanctions is not the strongest drive in compliance to law, but more than legitimacy, indicators of morality and social control are the strongest in explaining why people obey the law in Brazil.

EU Law, International Law and Economic Sanctions against Terrorism: The Judiciary in Distress? Research Papers in Law, 3/2008

From the Introduction. This article seeks to examine the relationship between European Union law, international law, and the protection of fundamental rights in the light of recent case law of the European Court of Justice (ECJ) and the Court of First Instance (CFI) relating to economic sanctions against individuals. On 3 September 2008, the ECJ delivered its long-awaited judgment in Kadi and Al Barakaat on appeal from the CFI.3 In its judgment under appeal,4 the CFI had held that the European Community (EC) is competent to adopt regulations imposing economic sanctions against private organisations in pursuance of UN Security Council (UNSC) Resolutions seeking to combat terrorism; that although the EC is not bound directly by the UN Charter, it is bound pursuant to the EC Treaty to respect international law and give effect to UNSC; and that the CFI has jurisdiction to examine the compatibility of EC regulations implementing UNSC resolutions with fundamental rights not as protected by the EC but as protected by jus cogens. On appeal, following the Opinion of Maduro AG, the ECJ rejected the CFI’s approach. It held that UNSC resolutions are binding only in international law. It subjected the contested regulations to full review under EC human rights standards and found them in breach of the right to a hearing, the right to judicial protection and the right to property. Kadi and Al Barakaat is the most important judgment ever delivered by the ECJ on the relationship between EC and international law and one of its most important judgments on fundamental rights. It is imbued by constitutional confidence, commitment to the rule of law but also some scepticism towards international law. In the meantime, the CFI has delivered a number of other judgments on anti-terrorist sanctions assessing the limits of the “emergency constitution” at European level. The purpose of this paper is to examine the above case law and explore the dilemmas and tensions facing the EU judiciary in seeking to define and protect the EU’s distinct constitutional space. It is divided as follows. It first looks at the judgment in Kadi. After a short presentation of the factual and legal background, it explores the question whether the EU has competence to adopt smart sanctions. It then examines whether the EU is bound by resolutions of the Security Council, whether the ECJ has jurisdiction to review Community measures implementing such resolutions and the applicable standard of judicial scrutiny. It analyses the contrasting views of the CFI, the Advocate General, and the ECJ taking account also of the case law of the European Court of Human Rights (ECtHR). Further, it explores the consequences of annulling the contested regulation. It then turns to discussing CFI case law in relation to sanctions lists drawn up not by the UN Security Council but by the EC. The paper concludes by welcoming the judgment of the ECJ. Whilst its reasoning on the issue of Community competence is questionable, once such competence is established, it is difficult to support the abrogation of Community standards for the protection of fundamental rights. Such standards should ensure procedural due process whilst recognising the importance of public security.

The house that the Court built. The retained powers case law of the European Court of Justice and the constitutional structure of the Union

Euroopan unionin perustamissopimusten katsotaan muodostavan EU:n valtiosäännön, jonka rajat ovat kuitenkin perustamissopimusten määräysten väljän muotoilun sekä Euroopan unionin tuomioistuimen tulkintakäytännön valossa epätarkat. Etenkin kysymys unionin ja sen jäsenvaltioiden välisestä toimivallanjaosta on EU-oikeudellisen tutkimuksen klassikoita. Tarkastelen pro gradu -tutkielmassani unionin valtiosääntörakennetta ja unionioikeuden kokonaisvaikutusta jäsenvaltioiden toimivaltojen käyttöön erityisesti EU-tuomioistuimen ratkaisukäytännössään kehittämän niin kutsutun retained powers -doktriinin valossa. Kyseisen opin mukaan EU-oikeus asettaa vaatimuksia jäsenvaltioiden toimivaltojen käytölle myös niillä aloilla, joilla sääntelytoimivalta on jäänyt jäsenvaltioille eikä sitä ole jaettu unionin kanssa. Aiheen teoreettisen tarkastelun pohjalta analysoin Euroopaun unionin tuomioistuimen ratkaisukäytäntöä erityisesti yhtä säilytetyn toimivallan alaa, koulutusta, koskevissa tapauksissa pyrkien havaitsemaan typologioita tuomioistuimen ratkaisutoiminnassa. Tutkimus noudattaa EU-valtiosääntöoikeuden metodologiaa. Keskeisenä lähdemateriaalina on siten käytetty unionituomioistuimen ratkaisukäytäntöä, joka heijastaa perustamissopimuksia tarkemmin unionin valtiosääntörakennetta. Oikeuskäytännön analyysi ja tulkinta on suoritettu peilaten sitä vasten unionin kehitystä markkinaorientoituneesta organisaatiosta yleismaailmalliseksi poliittiseksi unioniksi. Tutkielmani loppupäätelmä on, että jäsenvaltiot ovat tietyissä rajoissa hyväksyneet unionituomioistuimen kehittämän doktriinin, ja unionituomioistuin on siten saanut aikaan tosiasiallisen muutoksen EU:n valtiosääntörakenteessa. Retained powers -doktriini on omiaan syventämään eurooppalaista integraatiota ja nostaa kysymyksiä toimivallanjaon merkityksestä unionioikeudessa, perustamissopimusten kyvystä heijastaa unionin valtiosääntörakennetta sekä unionituomioistuimen toiminnan poliittisesta luonteesta.

The Right to Water in the Case-Law of the Inter-American Court of Human Rights

The human right to water is nowadays more broadly recognised, mainly due to the essential societal function that this resource plays; likewise, because of the present water scarcity is generating conflicts between its different uses. Thus, this right aims at protecting human beings by guaranteeing access to clean water that is essential to satisfy vital human needs. Similarly, access to clean water is an important element to guarantee other rights including the right to life and health. The recognition of the right to water is mainly achieved in two ways: as a new and independent right and as a subordinate or derivative right. Concerning the latter, the right to water can emanate from civil and political rights, such as the right to life; or can be derived from economic, social and cultural rights, including the right to health, the right to an adequate standard of living, and the right to housing. This contribution explores the position of the Inter-American Court of Human Rights regarding the right to water, and analyses whether the Court has recognised the right to water and, if so, in which manner.

EU free movement law and the legal recognition of same-sex relationships: the case for mutual recognition

This article seeks to examine the cross-border legal recognition of same-sex relationships in the EU. Although the Member States maintain an exclusive competence in the field of family law and, thus, it is up to them to determine whether they will provide a legal status to same-sex couples within their territory, they need to exercise their powers in that field in a way that does not violate EU law. This, it is suggested, requires that Member States mutually recognize the legal status of same-sex couples and do not treat same-sex couples worse than opposite-sex couples, if the basis of the differentiation is, merely, the (homosexual) sexual orientation of the two spouses/partners. Nonetheless, the current legal framework does not make it clear that Member States are under such an obligation. The main argument of the article, therefore, is that the EU must adopt a more hands-on approach towards this issue.

Just another case of treaty interpretation? Reconciling humanitarian law and human rights law in the ICJ

This chapter offers a fresh critique of the approach taken by the International Court of Justice to the relationship between humanitarian law and human rights law. In so doing, it seeks to move beyond the intractable debates that have dominated this area, offering an original account of the relationship that is firmly grounded in general international law concepts of treaty interpretation.

The role of law and public-private collaboration in promoting innovative firms in Brazil: the case of the BNDES and the “criatec fund”

This paper presents the result of a qualitative empirical research about the “Criatec Fund”, a venture capital fund, privately managed and directed to innovative firms, that was created in 2007 by the Brazilian Development Bank (BNDES). The paper discusses the role of law in the implementation of the Criatec Fund in three different legal dimensions: structural, regulatory and contractual. Based on interviews, this paper tries to test some hypothesis previously formulated by some scholars that studied new financial policies created by the BNDES. This study explains the institutional arrangements of this seed capital policy and the role of flexible legal instruments in the execution of this peculiar type of publicprivate partnership. It also poses some questions to the “law and development agenda” based on some insights from the economic sociology of law.

Law and economics in the civil law world: the case of Brazilian Courts

Conventional wisdom holds that economic analysis of law is either embryonic or nonexistent outside of the United States generally and in civil law jurisdictions in particular. Existing explanations for the assumed lack of interest in the application of economic reasoning to legal problems range from the different structure of legal education and academia outside of the United States to the peculiar characteristics of civilian legal systems. This paper challenges this view by documenting and explaining the growing use of economic reasoning by Brazilian courts. We argue that, given the ever-greater role of courts in the formulation of public policies, the application of legal principles and rules increasingly calls for a theory of human behavior (such as that provided by economics) to help foresee the likely aggregate consequences of different interpretations of the law. Consistent with the traditional role of civilian legal scholarship in providing guidance for the application of law by courts, the further development of law and economics in Brazil is therefore likely to be mostly driven by judicial demand.