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The present article enquires whether arbitral “precedent” plays any part in the identification of the applicable standard of review by arbitral tribunals. It does so by surveying a selected sample of arbitral awards that displayed a remarkable degree of uniformity and that might have encouraged arbitral tribunals to resort to previous case law when applying a specific standard of review. This sample consists of regulatory disputes initiated against Spain for alleged violations of the fair and equitable standard provided by Article 10(1) of the Energy Charter Treaty. The article initially gives an account of the relevance of the standard of review doctrine and of the role of precedent in international investment arbitration. It then moves to investigate the possibility that previous case law has served as the legal basis for determining the appropriate standard of review in the regulatory disputes against Spain. Based on the analysis of the Spanish cases, the article finally elaborates on the role of precedent in the identification of the applicable standard of review in general terms.

Resumo O presente trabalho discute os modelos de constitucionalismo não escrito do common law, e suas principais características que instituem novas possibilidades representativas da constituição. Usualmente, cria-se uma distopia divisória do elo entre o escrito com o não escrito, enxergando o texto constitucional como um dogma e uma previsibilidade nas decisões judiciais. Contudo, se os direitos humanos e fundamentais são abertos e abstratos, a mera codificação não restringe seu entendimento. Desse modo, este trabalho busca apresentar novos caminhos interpretativos da constituição, a partir da ênfase nos princípios não escritos, da coerência aos precedentes judiciais, e na possibilidade de uma constituição viva. O método de pesquisa foi funcionalista do direito constitucional comparado. Os resultados alcançados demonstram que a dimensão não escrita do texto constitucional permite definir a constituição como um instrumento vivo, e em constante evolução. Abstract This paper discusses the models of unwritten or common law constitutionalism and their main features that institute new representative possibilities of the constitution. Usually, a dystopia is created by dividing the link between the written and the unwritten, seeing the constitutional text as a dogma and predictability in judicial decisions. However, if human and fundamental rights are open and abstract, mere codification does not restrict their understanding. This paper intends to present new interpretative paths of the constitution based on the emphasis on unwritten principles, the coherence of precedents, and the possibility of a living constitution. The research method was the functional method of comparative constitutional law. Results indicate that the unwritten dimension of the constitutional text allows for defining the constitution as a living and constantly evolving instrument.

In this paper I discuss a particular conception of legal inquiry and how it demonstrate how it can shed light on well-established types of legal argument. I do so (i) by unpacking Del Mar's account of legal inquiry, and then (ii) demonstrating that one common and important judicial argumentative practice (the judicial use of inferences to the best legal explanation) cannot be fully captured within the limits set out by a doctrine of binding precedent and, finally, (iii) showing how a more expansive notion of legal inquiry (like Del Mar's) can help us make sense of that particular argumentative practice.

This study arises from the basic idea that an expert's admissibility record may have downstream effects. Most notably in recent years, courts appear to cite previous admissions or exclusions in deciding whether to admit or exclude an expert. In addition, anecdotally, experts have expressed fear that even a single exclusion can negatively impact their future ability to testify (and therefore their future livelihood as a testifying expert). This study, part of a broader paper on expert histories, attempts to em- pirically test whether an expert's probability of exclusion is constant, or whether previous exclusions negatively affect an expert's chances of being admitted in future cases. It also asks whether previous exclusions negatively affect an expert's chances of being retained in the future. To do so, the study uses an existing database on expert history compiled and maintained by Expert Profi?ler, LLC. Expert Profi?ler is a consulting service typically hired by litigants to research the prior admissibility records of experts. Their database contains the results of these consulting efforts, which scour the public record (and not just the published case law) for previous pro?ers and challenges of selected experts. The paper uses both a newly developed method for discrete-time recurrence analysis as well as more conventional discrete-time survival analysis.

This article makes several different observations about the Free Speech Clause and intellectual property law, in light of some recent doctrinal developments: (1) the Court's decision about copyright in Eldred v. Ashcroft; (2) the Court's evolving commercial speech jurisprudence in cases such as 44 Liquormart v. Rhode Island, which is relevant to trademark dilution law; (3) the California Supreme Court's right of publicity decision in Comedy III Productions v. Saderup; and (4) the Court's decision in Bartnicki v. Vopper, which indirectly bears on trade secret law.

This article offers the justification for a type of carbon customs union in which countries with a diverse range of high-ambition domestic climate measures would adopt a common external tariff on carbon intensive imports from countries outside the union. We explain why any pragmatic approach to carbon border measures (CBMs) is likely to create problems under prevailing interpretations of the World Trade Organization's (WTO) primary rules. Given the urgency of the climate crisis and the fact that the legality of a CBM – no matter how designed – will be a question of first impression for any WTO dispute panel, WTO consistency should take a backseat to considerations of domestic legal and political feasibility in designing a CBM. Instead of trying to fit a CBM into current understandings of WTO rules, WTO members should renegotiate WTO rules to permit a range of aggressive, but likely trade-restrictive, decarbonization measures. Having said that, we also recognize that WTO negotiations may take longer than optimal from a decarbonization standpoint. We therefore suggest an approach that would allow WTO members to take advantage of flexibilities that existing WTO rules afford.

Tryphonin, Papinian and the regard for immaterial losses in the law of obligations. Contrary to the first impression given by the sources, there is no dispute among late classical lawyers as to whether a creditor can obtain compensation for an immaterial loss. Rather, the only disputed issue is whether a creditor can demand compensation for performance of monetary value even if it had benefitted a third party. Papinian and Paul affirm this with reference to the precept of bona fides. Tryphonin focuses on the creditor’s freedom of disposal: If the creditor can claim his interest in a hypothetical sale of the object of performance, he must also be entitled to do so if he wants to pass it on free of charge and thus prove his generosity.

The main purpose of modern information systems (IS) is to support the procedures of controlling many business processes (BP) of an enterprise. At the same time, due to a weak formalization of BP, processes of development, reengineering of various service-oriented IS and IT services are a complex problem. To address this problem, the task to improve the method for choosing IT services that meet an assigned set of functional and non-functional limitations was stated. The specific features of the original method for choosing IT services were analyzed, its main shortcomings were identified. The model of the BP precedent was modified to establish the relationship between descriptions of the precedent, functional requirements, and the used IT services. The method for selecting IT services for the IS was improved by adding the functions of requirements analysis and searching for descriptions of IT services that partially meet the stated functional requirements. In the method, the adaptive linear associator of the mADALIN neuron was used to quantify the degree of match of the functional requirement and the description of the function of the IT service. These proposals were the basis for the improved method for selecting the IT service that best fits the set of constraints that are formed. Based on the result of the conducted research, an experimental test of the improved method for selecting an IT service to solve the problem of automation of the activities of sale force of the electronic policy OSAGO was carried out. The information technology implementing the original method for choosing IT services was compared to the improved method. It was shown that the improved method makes it possible to identify situations of a match of functional requirements of a customer and the descriptions of IT services. This makes it possible to select those IT services that match the functional requirements to a degree above the assigned minimum limit

International audience; Why are project leaders of radioactive waste geological disposal centre projects interested in the Giza pyramids, tsunami markers or time capsules? What are they looking for as they venture into the fields of landscape archaeology, archival science and the cognitive processes of intergenerational transmission? Based on a study of the reports produced by the teams of researchers mobilized in the early 1990s by the US Department of Energy and those from the Nuclear Energy Agency's international Preservation of Records, Knowledge and Memory across Generations program, this article aims to better understand the ways in which the actors involved in such projects try to ensure a memory capable of withstanding the multi-millennia durations engaged by certain types of radioactive waste.

The Author provides the results of a comparative analysis of two classically differentiated by legal scholars national legal systems – the American and Russian systems. Obviously, the announced legal systems represent two of the main categories of legal systems: common law and Roman law. Considered traditionally as part of common law, the Author investigates distinctive attributes of American federal and state law, proving the fact of integration of significant features of Continental Europe and Anglo-Saxon legal systems. The article also contains an analysis of the legal nature of the case-law of the European Court of Human Rights and its distinguished place as a precedent (which is the main common law attribute) and source of law in the Russian Federation.

Studies employing network analysis to reveal hidden mechanisms in judicial decision making, both in common law as well as civil law countries often use rather vague concepts of ‘importance’ of judicial decisions, concepts that are not always thoroughly explained, tend towards certain relativity and are used together with other similar words [(legal) relevance, (legal) significance…], with or without attempting explanation of these concepts, or relying purely on operationalization. This paper argues that in the context of legal systems that do not recognize a doctrine of precedent this approach is either oversimplified, or even erroneous. It further shows that ‘importance’ of past case-law is essentially a matter of the judge’s choice. Approaching this concept in this manner allows me to show that this choice is explainable within the theoretical framework provided by theories of relevance. This paper focuses on two major approaches to relevance: linguistic pragmatism and information retrieval, and shows that the concept of optimal relevance, as understood by theories of relevance, may serve well as an underlying explanatory framework for answering the question of why judges tend to argue by referring to past case-law even in those legal systems that do not recognize a doctrine of binding precedent.

В данной статье в контексте педагогики совместной деятельности на эмпирическом материале, а также на основе анализа литературы обосновывается необходимость построения понятия авторской позиции в профессиональной деятельности школьного учителя. На основе таких характеристик, как прецедентность, направленность, продуктивность, результативность педагогических действий, отношение к прецедентам и тип базового способа деятельности проводится различение авторской и субъектной позиции. Кроме того, обосновывается гипотеза о том, что наличие у педагога авторской позиции способствует формированию внутреннего интереса к профессии школьного учителя и исследовательского интереса к собственной профессиональной деятельности, преодолению профессионального выгорания и формализации деятельности по внедрению инноваций в образовательный процесс и организации школьной жизни как пространства инноваций., In this article in the context of collaborative pedagogy on the basis of empirical material as well as literature analysis the necessity of constructing the concept of authorial position in professional activity of a schoolteacher is substantiated. Based on such characteristics as precedence, direction, productivity, efficiency, pedagogical actions, relation to precedents and basic mode of activity type a distinction of author and subject position is made. In addition, the hypothesis is substantiated that the teacher᾿s authorial position contributes to solving such problems as the formation of internal interest in the profession of schoolteacher and the formation of research interest in own professional activity, professional burnout, formalization of activities to implement innovations in the educational process and the organization of school life as a space of innovation.

El arbitraje como sistema de resolución de conflictos se está extendiendo internacionalmente, lo que provoca su asentamiento en España. No es la única alternativa posible para la resolución de problemas, por lo que se analizarán las diferencias existentes entre la vía judicial y la vía arbitral. Asimismo, se examinará el procedimiento a seguir para el ejercicio de la acción de anulación del laudo arbitral y cuales son los motivos que permiten su interposición. Por último, se estudiará la posibilidad de regular una segunda instancia dentro del propio procedimiento arbitral. En definitiva, este trabajo se basará en la naturaleza, procedimiento y causas de la acción de anulación, así como en el análisis de las distintas resoluciones de los tribunales que abordan este tema. Arbitration like a resolution of conflicts system is settling in Spain because of its internationally growing. It is not the only way to resolve issues, consequently the differences between the jurisdictional way and the arbitration one will be analysed. Additionally, the action for annulment procedure of the arbitral award and the causes for its using will be studied in this document. Finally, another matter which will be kept in mind is the second arbitral instance. To sum up, this project is based on the analysis of the constitution, procedure and causes of action for annulment of the arbitral award and the predecent’s examination which focus on this annulment action. Máster Universitario en Acceso a la Abogacía por la Universidad Pública de Navarra Abokatutzarako Sarbiderako Unibertsitate Masterra Nafarroako Unibertsitate Publikoan

This article explores the overlap between the unlawful termination of a contract of employment and the unfair dismissal of an employee. The Supreme Court of Appeal has in a sequence of cases developed the common-law contract of employment to include the implied right to a pre-dismissal hearing. Owing to the fact that labour legislation already regulates unfair dismissal law, this in effect creates a dual system of dispute resolution in relation to the termination of contracts of employment. The focus of this contribution is on the factors that allure dismissed employees to the civil courts and it highlights the problems that are associated with the overlap of the High Court’s and the Labour Court’s jurisdictions. Future developments are traversed and the Constitutional Court is called upon to bring an end to the development of parallel dispute resolution systems in respect of dismissal disputes.

On first impression, one could be inclined to think that the Swiss military experts learned something from the experiences of the last years e.g. Prague 1968, the discussion about Civilian Defence, the increasing use of non-violent actions in conflicts pertaining to home affairs. Indeed, their ideas about the role and meaning of non-violent actions of resistance as part of the total defence conception did change. As parts of the civilian national defence, which constitutes together with the military and psychological components the complete national defence, are only acknowledged: No domain contains indications about an active, non-violent resistance of the population. However, the multiplicity of methods of non-violent resistance in Czechoslovakia, which led in the first weeks after the intervention the Warsaw Pact nations into difficulties and hence appear to Swiss military men as 'admirable', is given only peripheral treatment.

Although the Constitution must inform the way legislation is interpreted by the courts, there is currently no Constitutional Court decision or secondary source which deals directly with the application of the Constitution to state regulation in South African insolvency law. With regard to the role and function of the Master as well as any future state regulation in insolvency law, certainly the most significant development within the context of the Constitution is the enactment of the Promotion of Administrative Justice Act (PAJA) which gives effect to the principles envisaged in section 33 of the Constitution. The aim of this article is not to provide a detailedexposition or comprehensive overview of constitutional and administrative law, but rather to highlight the relevance and potential impact of certain administrative law aspects on the functioning and day-to-day operation of a regulatory institution in South African insolvency law.

Uprawnienie do badania zgodności aktów prawnych z konstytucją, stanowiących podstawę wydania rozstrzygnięcia, przysługuje wszystkim sądom amerykańskim, tworząc rozproszony system kontroli konstytucyjności. Czynnikiem stabilizującym orzecznictwo stają się precedensy sądowe oraz doktryna stare decisis. Jednakże niełatwo dokonać jednoznacznej oceny roli doktryny stare decisis dla sądowej kontroli konstytucyjności prawa USA (judicial review) z uwagi na szereg czynników, które wpływają na jej znaczenie. Można do nich zaliczyć formalny brak bezwzględnego charakteru rozstrzygnięć sądowych, czy też brak związania Federalnego Sądu Najwyższego USA własnymi orzeczeniami. Ten ostatni wydaje się szczególnie istotny w przedmiotowej ocenie w kontekście znacznego aktywizmu sędziowskiego oraz sposobu nominowania i zatwierdzania sędziów na, co do zasady, dożywotnich stanowiskach. W niniejszej publikacji analizie poddane zostały wszystkie wyżej wymienione czynniki w celu dokonania możliwie rzetelnej oceny znaczenia doktryny stare decisis dla sądowej kontroli konstytucyjności prawa USA. All American courts have a right to examine the conformity of legal acts with the Constitution as the basis for issuing a decision, creating a diffused system of judicial review. Court precedents and the stare decisis doctrine become the stabilizing factor of jurisprudence. However, it is not easy to make an unequivocal assessment of the role of the stare decisis doctrine for judicial review due to a number of factors that affect its significance. They include the formal lack of absolute nature of the court decisions, or the fact that the Federal US Supreme Court is not bound by its own rulings. The latter fact seems particularly important in the assessment of the subject matter in the context of considerable judicial activism and the way the judges are nominated and approved for, in principle, lifetime positions. In this publication, all the above-mentioned factors have been analyzed in order to assess the significance of the stare decisis doctrine for judicial review in the US as accurately as possible.

Article is devoted by the 30th anniversary from the day of bonfire in the Library of the Russian Academy of Sciences. Based on V. M. Montvilov's book, the author attempts to open his contribution to liquidate the bonfire consequences in the Academy of Sciences’ Library. Montvilov played a great role in organizing negotiations with leading libraries and rendering international aid. His work as a UNESCO official was connected with preservation of such cultural objects of Russia as the Bolshoi Theatre, Russian State Library, the Russian Academy of Sciences’ Library. In the book «International official …», the author opened the specific character of UNESCO and emphasized a special role of this organization in the cultural heritage development of preservation. The book reflected his recollections and first impression about the Academy of Sciences’ Library and revealed new facts of elimination of the bonfire consequences. Montvilov's book is of great interest to the reader due to a wide range of problems posed in it and great factual material.

The manner in which political institutions convey their policy outcomes can have important implications for how the public views institutions’ policy decisions. This paper explores whether the way in which the U.S. Supreme Court communicates its policy decrees affects how favorably members of the public assess its decisions. Specifically, we investigate whether attributing a decision to the nation’s High Court or to an individual justice influences the public’s agreement with the Court’s rulings. Using an experimental design, we find that when a Supreme Court outcome is ascribed to the institution as a whole, rather than to a particular justice, people are more apt to agree with the policy decision. We also find that identifying the gender of the opinion author affects public agreement under certain conditions. Our findings have important implications for how public support for institutional policy-making operates, as well as the dynamics of how the Supreme Court manages to accumulate and maintain public goodwill.

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Copley v. United States involved a question at the intersection of tax law and bankruptcy law: can a debtor invoke bankruptcy exemption rules to shield an anticipated income tax refund from offset by the Internal Revenue Service? When the Fourth Circuit Court of Appeals was presented with this question of first impression — a question that has divided bankruptcy courts in recent years — it held that the IRS right of offset prevails over the debtors’ right of exemption. To date, Copley is the only circuit court opinion that rebuffs the so-called “majority view” on this question while also explicitly finding the income tax refund to be part of the bankruptcy estate. The stakes are significant for the IRS as a creditor, and this outcome underscores the primacy of tax offsets as a collection tool for the agency. As this essay describes, bankruptcy lawyers and tax lawyers alike need to be aware of this decision and the practical implications thereof so that they can advise debtors accordingly.

En la presente investigación se analizó la construcción de la vinculatoriedad del precedente en el ordenamiento jurídico colombiano, partiendo del concepto doctrinal de fuentes de derecho y del desarrollo histórico del precedente en el sistema de Common Law, analizando las razones por las cuáles se trata de un elemento ajeno al sistema que todas las constituciones colombianas han manejado por su herencia legalista, para identificar que su incorporación como parte fundamental de todas las decisiones judiciales es consecuencia de la vigencia de la actual carta política en estricta interpretación y aplicación de los principios que la conforman, generándose un desarrollo principalmente jurisprudencial sobre los parámetros para su aplicación y exigibilidad, lo que permitió concluir que pese ser una fuente de derechos aplicada prácticamente con la misma fuerza vinculante y obligatoria que la ley, no se ha cubierto adecuadamente lo correspondiente a sus efectos en el tiempo cuando se suscita un cambio de postura para garantizar los mismos principios de igualdad de trato jurídico, seguridad jurídica y confianza legítima que fundamentan su aplicabilidad. Para lo que se propone una herramienta jurídica procesal, basada en instituciones ya existentes del Common Law, que permitiría subsanar esta falencia y garantizar la adecuada ejecución del precedente judicial como fuente de derechos subjetivos en Colombia. This research analyzed the construction of the binding nature of precedent in the Colombian legal system, starting from the doctrinal concept of sources of law and the historical development of precedent in the Common Law system, analyzing the reasons why it is a foreign element to the system that all Colombian constitutions have handled by their legalistic heritage, to identify that its incorporation as a fundamental part of all judicial decisions is a consequence of the validity of the current political charter in strict interpretation and application of the principles that comprise it, This led to the conclusion that despite being a source of rights applied practically with the same binding and obligatory force as the law, it has not adequately covered the effects over time when there is a change of position to ensure the same principles of equal legal treatment, legal certainty and legitimate confidence that underlie its applicability. For this purpose, a procedural legal tool is proposed, based on existing Common Law institutions, which would allow to remedy this deficiency and guarantee the adequate enforcement of the judicial precedent as a source of subjective rights in Colombia.

By making the App Store the only official channel for iPhone owners to buy apps, Apple has created the only market in which iPhone owners and app developers may transact their business. Apple exploits the bottleneck that it creates by imposing a 15 percent or 30 percent commission on transactions between iPhone owners and app developers. The array of Apple litigation elicited by this conduct may pose a case of first impression, since there does not appear to be a pigeonhole for Apple’s conduct. Apple neither buys nor sells third-party apps and therefore it does not exercise monopsony or monopoly power. If plaintiffs frame their antitrust challenges correctly, a court will have to determine whether Apple’s conduct—use of its proprietary technology and threats aimed at both app developers and iPhone owners—offends Section 2 of the Sherman Act. If the court finds that Apple has violated Section 2 of the Sherman Act, then it must also decide who has suffered antitrust injury and who has standing to sue under Section 4 of the Clayton Act. We offer an economic analysis of these issues.

Aim. To establish the linguistic features characteristic of intertextual inclusions in diary discourse, thematically united by an appeal to history and the perception of historical events by a linguistic person, and the ability of this kind of intertextual inclusions to convey emotions.Methodology. Several interdependent research methods were used: contextual, lexico-stylistic, discursive, linguocultural, statistical. The analysis showed the presence of an increased emotive involvement of the authors in the changes taking place around them, as evidenced by the extended range of means of expression and their convergence.Results. It was revealed that the social role of the “Historian” has a special tool for advancing in the flow of speech (“they-communication”) and a special way of using the intertestal references as means of expression.Research implications. The study contributes to the expansion of views on the nature of the intertext and its emotive mode, as well as to the possibility of using the proposed approach in classes on analytical reading, discourse theory and text interpretation.

O presente comentário analisa a intersecção entre regimes jurídicos das áreas urbanas de génese ilegal e das áreas de reabilitação urbana, visando a clarificação das responsabilidades administrativas e financeiras em cada um deles, tendo por mote o caso concreto apreciado pelo Tribunal da Relação de Lisboa.

Funder: University of Cambridge, Research Question: To what extent could police identify victims of modern slavery among growers arrested on cannabis farms as suspects under drug laws, and what challenges of evidence would have to be met to separate offending from victimisation? Data: A purposive sample of criminal history data of all Vietnamese nationals arrested for cannabis cultivation offences in Surrey/Sussex in the 3 years to 2017 (N = 19) was identified and collected. Three ‘cannabis farm’ cases from the period 2014–2017 were analysed to produce key information about growers, including their nationality, criminal history and possible status as modern slavery victims. The case records and interviews provide key information about the extent to which growers on farms were treated as slaves under the 2015 Modern Slavery Act. Methods: Semi-structured interviews were conducted with the three arrested growers to explore their lived experiences of recruitment and labour on the farms. Arresting police officers were also interviewed to explore how they frame the problem of cannabis cultivation and make decisions about their role in confronting it. Interview transcripts were prepared for analytic purposes. All interviewees were informed that the research was focused on the management of the policing of cannabis farms alone and full anonymity was assured. Findings: Five of the 19 Vietnamese nationals had previous criminal disposals. Of the remaining 14 individuals, five had no record and nine had various charges, but the prosecutions had not reached court. Of the three cases examined in depth, the arrested growers provided stories consistent with their having been trafficked and subjected to ‘debt bondage’. They described precarious journeys before being forced to work on UK farms. All three had been exposed to threats of violence or death for themselves and/or their families, should they attempt escape. Varying levels of mental and physical hardship were evidenced. There were a priori reasons to conclude that they were eligible to be considered modern slavery victims. When arrested, however, none had pleaded victimisation. Police officers demonstrated an ignorance of related legislation and varying levels of awareness of the possibility of modern slavery. They responded to the first impression made by the grower as a person culpable under drugs laws. Even where officers had concerns about modern slavery, no appropriate crime was recorded, and no formalised investigation followed. Conclusions: Given reluctance or inability to frame the police response to cannabis farms under modern anti-slavery legislation, policing agencies should consider adopting more detailed practice guidelines to officers on how to react to the complex challenges involved, including the investigative opportunities that may help unearth modern slavery on cannabis farms through greater encouragement of victim accounts.

As the Trump Administration placed ever new categorical limits on asylum, its opponents countered that asylum decisions have to be made on an individualized basis. The government, they claimed, cannot categorically exclude groups like former gang members or victims of gender-based violence from protection against persecution. Successful as this insistence on case-by-case adjudication has recently been, it stands in tension with past cases in which groups like nuclear families or gay men were categorically deemed eligible for asylum. The litigation and rulemaking currently reshaping asylum law suggest that neither side in the debate has fully understood whether, when, and why case-by-case rather than categorical decision-making is required. It turns out that what at first seems like confusion over procedure actually stems from unclarity about the substantive tests being adjudicated: the “social distinction” and, especially, the “particularity” requirements that are currently (mis)used as the primary reason for denying asylum claims, especially those brought by the tens of thousands of refugees fleeing gang and gendered violence. Properly understanding these tests allows us to understand whether they can be categorically applied—either to bar asylum claims or, perhaps in the Biden Administration, to make them possible.

Big data and its use by artificial intelligence (AI) is changing the way intellectual property is developed and granted. For decades, machines have been autonomously generating works which have traditionally been eligible for copyright and patent protection. Now, the growing sophistication of AI and the prevalence of big data is positioned to transform computer-generated works (CGWs) into major contributors to the creative and inventive economies. However, intellectual property law is poorly prepared for this eventuality. The UK is one of the few nations, and perhaps the only EU member state, to explicitly provide copyright protection for CGWs. It is silent on patent protection for CGWs. This chapter makes several contributions to the literature. First, it provides an up-to-date review of UK, EU and international law. Second, it argues that patentability of CGWs is a matter of first impression in the UK, but that CGWs should be eligible for patent protection as a matter of policy. Finally, it argues that the definition of CGWs should be amended to reflect the fact that a computer can be an author or inventor in a joint work with a person.

Multilingualism has been considered one of the most crucial features of the European Union. The constant development of that international organisation calls for a new perspective on the legal translation in the European Union. It is argued that the distinctive nature of the EU translation should be regarded as a reason for o separating it from the theory of legal translation. It is also suggested that the EU translation should be approached from the interdisciplinary perspective as it may provide a broader field of research. Furthermore, such perspective may contribute to a better understanding of the influence of language on the development of the EU case law and it may lead to a better recognition of linguistic precedents in the judgements of the Court of Justice of the European Union.

Рассматривается метод, формирующий правдоподобные рассуждения на основе прецедентов (CBR), для WEB-системы поиска аналогов и заменителей лекарственных препаратов. Исследуются использование метрического алгоритма (метод ближайшего соседа) и возможность учитывать коэффициенты важности для параметров объекта с целью организации извлечения прецедентов из библиотеки прецедентов., A method of forming a plausible reasoning and mind-conclusions on the basis of precedents (CBR), for a WEB search system for analogues and substitutes for drugs. We in-vestigate the use of the metric algorithm (nearest neighbor) and the ability to take into ac-count the factors of importance for the process parameters in order to organize the removal of precedents of the case library.

The slowness of legal proceedings in the common law legal system is a widely known fact. Any tool which could help reduce the time taken for the resolution of a case is invaluable. Common legal systems place a great importance on precedents and retrieving the correct set of precedents is considerably time consuming. Hence, for any case whose proceedings are in progress, if there are suitable prior cases, then the court has to follow the same interpretations that were passed in the prior cases. This is to ensure that similar situations receive similar treatment, thus maintaining uniformity amongst the legal proceedings across all courts at all times. Hence, precedent cases are treated as important as any other written law (a statute) in this legal system. In this paper, we propose two new approaches to solve this information retrieval problem wherein the system accepts the current case document as the query and returns the relevant precedent cases as the result. The first approach is to calculate the document similarity using Wordnet, which is a lexical database that could be leveraged to quantify the semantic relatedness between two documents, using a semantic network. The second approach is the use of a Siamese Manhattan Long Short Term Memory network, which is a supervised model trained to understand the underlying similarity between two documents.

This paper, drafted as an adjudicator’s opinion in a recent case of nearly first impression, explores an approach to aligning the strengths and opportunities available through the U.S. International Trade Commission (ITC) by considering how more ordinary antitrust issues can be adjudicated through the Section 337 portion of the ITC’s docket. This might be done using existing law. The basic theme is that there are several significant reasons why even a skeptic of the ITC's Anti-dumping, Countervailing Duty, and Safeguards docket (collectively, the "Title VII" docket) – as well as an antitrust skeptic – should be significantly less worried when cases normally expected to be brought in the Title VII portion of the ITC’s docket as petitions are instead brought in the Section 337 portion of the ITC docket as complaints alleging ordinary violations of the antitrust laws. Private antitrust litigation fits well within the ITC’s Section 337 docket for several reasons. It squarely fits with the plain meaning of the ITC’s statute. It also squarely fits the well-established antitrust case law. In addition, it offers some practical benefits. Unlike the relatively easy-to-satisfy legal requirement for assessing injury in the Title VII portion of the docket, a 337 investigation involving established antitrust law would turn on the substantive legal standards within that body of established antitrust law that are seen by a broad consensus to be focused on a middle of the road attempt to represent true public interest in avoiding actual economic harm to a market as a whole. In addition, a 337 investigation, which involves initial inter-partes adversarial litigation before an Administrative Law Judge (ALJ), implicates less reliance on administrative deference than an action in the Title VII portion of the docket, and more reliance than in the Title VII portion of the docket on a detailed factual record involving the full panoply of procedural devices ordinarily available in federal court for truth-testing of evidence including cross examination of testimony, all in a timeframe likely to be significantly shorter (around 18 months) than the many years typically required for antitrust litigation in federal court. Nevertheless, at least one recent high-profile dispute involving steel imported from China shows there is at least one significant barrier that may stand as a practical obstacle to a private litigant bringing an antitrust claim under the Section 337 portion of the ITC’s docket: the doctrine that federal courts developed called “antitrust injury,” During the initial phases of such a case recently brought against Chinese importers of steel by the domestic US steel industry, with support from both companies and unions, the ALJ dismissed the antitrust complaint for lack of antitrust injury in an initial determination that was then reviewed by the Commission. The ITC affirmed. This paper explores some reasons why the antitrust injury doctrine from federal court may not be a good fit for investigations brought under Section 337 at the ITC.

Hughes and Stuart’s shocking and unexpected deaths from the transplant treatments they received at Cardiff’s University Hospital of Wales could, in Lord Denning’s terminology, be described as ‘a most extraordinary chapter of accidents’. As Hughes and Stuart’s transplant treatments were based on expanded criteria donor kidneys, their deaths underscore not only the perennial problem of organ shortage in England and Wales which necessitates the clinical use of ‘high risk’ organs; but also, their deaths invite a re-examination of some of the ethical and legal issues involved in transplantation with expanded criteria donor organs. Being incomparable in calamity and rarity, the Welsh transplant incident is bound to raise novel issues of first impression in negligence, issues that this essay attempts to identify and analyse.

Law exists solely in and through language. Nonetheless, systematical empirical analysis of legal language has been rare. Yet, the tides are turning: After judges at various courts (including the US Supreme Court) have championed a method of analysis called corpus linguistics, the Michigan Supreme Court held in June 2016 that this method “is consistent with how courts have understood statutory interpretation.” The court illustrated how corpus analysis can benefit legal casework, thus sanctifying twenty years of previous research into the matter. The present article synthesizes this research and introduces computer-assisted legal linguistics (CAL2) as a novel approach to legal studies. Computer-supported analysis of carefully preprocessed collections of legal texts lets lawyers analyze legal semantics, language, and sociosemiotics in different working contexts (judiciary, legislature, legal academia). The article introduces the interdisciplinary CAL2 research group (www.cal2.eu), its Corpus of German Law, and other related projects that make law more transparent.

This paper suggests reassessing the teachings of the Roman method of creation of law, based on the understanding of the ius as ars boni et aequi, which makes evident that the law has a practical purpose and, consequently, topics is the knowledge itself of the law, in which the centrality of the case is highlighted and the realization of justice in terms of what we would today call «effective protection of rights». The text argues that such an understanding presupposes the understanding of the dynamic nature of law, of its artificial nature as created by human beings and, therefore, perfectible, of the active role of the jurist in the construction of a more equitable right, which makes possible the realization of the balanced equality in the preservation of the values of reasonableness that good faith proposes, by considering the requirements of the case, in harmony with the principles that govern the system, in a permanent reconstruction of the balance between topic and system. In rethinking the application of law according to its nature, to the essential function of serving coexistence, and of making the values of a social State of Law a reality, the paper analyzes the experience of Peruvian jurisprudence in the «precedents» of the Supreme Court of Justice, examining several of its most emblematic judgments, under the perspective of topics and, in general, of the Roman method of creating the law. El texto propone revalorizar las enseñanzas del método romano de creación del derecho, basado en el entendimiento del ius como ars boni et aequi, lo cual pone en evidencia que el derecho posee una finalidad práctica y, en consecuencia, la tópica es el saber propio del derecho, en el que se destaca la centralidad del caso y la realización de la justicia en términos de lo que hoy llamaríamos «tutela efectiva de los derechos». Un entendimiento tal supone la comprensión del carácter dinámico del derecho, de su naturaleza artificial en cuanto creado por el ser humano y, por ende, perfectible, del rol activo del jurista en la construcción de un derecho más equo, que haga posible la realización de la igualdad ponderada en la preservación de los valores de razonabilidad que propone la buena fe, mediante la consideración de las exigencias del caso, en armonía con los principios que rigen el sistema, en una permanente reconstrucción del equilibrio entre tópica y sistema. En este repensar la aplicación del derecho atendiendo a su naturaleza, a la función esencial de servir a la convivencia y de hacer realidad los valores de un Estado social de Derecho, se analiza la experiencia de la jurisprudencia peruana en los «Plenos Casatorios» de la Corte Suprema de Justicia, examinando varios de sus fallos más emblemáticos, bajo la perspectiva de la tópica y, en general, del método romano de creación del derecho.

Legal precedent serves as the foundation of the common law. Judges provide their reasoning through precedent, citing cases to support their conclusion while distinguishing between cases cited by that counsel in favor of an opposing result. Legal precedent also provides the mechanism by which judges communicate with one another, at the same time providing guidance to prospective litigants and the practicing bar. This process is particularly important for supreme courts, whose decisions bind all lower courts within their jurisdiction. For this reason, in most common‐law jurisdictions, the supreme court decides relatively few cases but draws heavily on precedent for the opinions it issues. The Supreme Court in India stands in contrast to its counterparts in countries such as the United States and Canada in that it decides thousands, rather than tens, of cases. Examining the universe of Court decisions from 1950–2010, we find that the Court elects not to cite precedent in nearly half its opinions. In turn, these opinions without citation to precedent are rarely subsequently cited. However, there is a second set of decisions that is more analogous to U.S. Supreme Court decisions. These decisions do cite prior decisions and are cited by later cases. Opinions that do cite precedent gravitate to older opinions, whose salience often endures for decades. These findings suggest the Court is constrained in its ability to process a heavy caseload, and makes strategic decisions as to which opinions to emphasize through its use of precedent.

The role of courts as lawmakers has been scrutinised, partly because of the questions it raises regarding legitimacy. This scrutiny has sometimes assumed that courts are safe from legitimacy-based criticism in their role as appliers of law. However, recent events in the United Kingdom show that, regrettably, this is not so: the media reaction to the judgments in the Brexit case of Miller went far beyond criticism of the courts’ reasoning or conclusions. It was an attack on legitimacy. Insofar as such attacks arise out of misunderstandings about the nature of adjudication (including, for example, the existence and scope of judicial discretion), one way of countering them is for the legal community (scholars, judges, practitioners) to continue to increase public awareness about these issues. However, it is incumbent upon other parts of the state – the executive and the legislature – to respond promptly to such attacks in order to uphold the independence of the judiciary and the rule of law.

The article examines how states talk about the International Criminal Court (ICC, or the Court) through the lens of Albert Hirschman’s exit, voice and loyalty framework. Based on a content analysis...

The EU's Common Foreign and Security Policy (CFSP) was conceived of as an area ill-suited for full judicial review by the Court of Justice of the European Union. The Lisbon Treaty confers on the Court limited jurisdiction which the recent case law has interpreted in broad terms. This article will place this case law in the broader constitutional setting of the EU legal order and will provide a critical analysis of its implications for both the EU's and domestic courts. The analysis is structured on the basis of three main themes. The first is about the position of CFSP in the EU's constitutional architecture: the article will analyse the constitutional ambivalence that characterizes this position and how it is conveyed by the provisions of the Treaty on the European Union and the Treaty on the Functioning of the European Union governing the Court's jurisdiction. The second theme is about the recent case law, and the integrationist approach that the Court of Justice has adopted to the scope of its jurisdiction. The third theme is about national courts: the article will argue that recent case law has been too quick to dismiss them, and that primary law renders them an essential part of the judicial review system governing CFSP.

This article analyses the case law of the European Courts of Human Rights on manifestation of religion or belief under Article 9 echr, excluding particular types of manifestation that are covered in other articles in this special issue. It provides an overview of the main holdings of the Court in this area, together with some critical comments about aspects of the Court’s case law that, in the author’s view, should be improved.

Since 2008 the International Criminal Court has been subject to criticism for being somehow imperialist and some criticism of the Court has pursued a distinctly anti-imperialist narrative. Whilst such criticism is often motivated by political considerations, this article examines whether such narrative can be to a certain extent due to some provisions of the Rome Statute itself, rather than the contingent choices made by Court organs. This involves analysing the law itself for traces of what this article terms ‘inherent imperialism’. This is where the text of an instrument implicitly envisages an unequal or hierarchical legal structure. If some of the Rome Statute’s features can be considered inherently imperialist, this could provide a partial justification for some of the political attacks on the Court’s choices. This article, by providing a theoretical framework, which interprets claims that the law is imperialist, aims to put the anti-imperialist attacks on the Court in perspective.

South Africa’s transition to constitutionalism in 1994 signalled a change in the regulation of state authority and encapsulates the promotion of the fundamental values and principles of the new dispensation. These principles entail the rebuilding and re-affirmation of public trust and confidence in the functioning of the judiciary. On the other hand, the judiciary, especially the Constitutional Court that is the focus of this paper, is required to ensure the promotion of the principles, which include the rule of law, constitutionalism, and the separation of powers, democracy, and accountability. These are basic principles that have a direct bearing on the restoration of the credibility of the judiciary in relation to the manner in which it executes its function within the framework of the new constitutional dispensation. This role is entrenched in the 1996 Constitution, which affirms the independence of the judiciary and non-interference in the execution of its functions. Against this background, the paper examines the judicial development of the constitutional law principle of the ‘rule of law’ in the regulation of state authority  by focusing on selected judgments of the Constitutional Court. Although the principle of the rule of law itself is broad, the objective is to establish a deepening of the general principles of constitutional law through the process of judicial review. Our use of the judgments of the Constitutional Court is motivated by its relative infancy in terms of shaping the principles of the new constitutional order and the concept of the rule of law, which are the founding values of the new dispensation and which serve as a mechanism for regulating government conduct. The intention is not to trace the history of the Court and/or exhaustively review its judgments  but to identify a few cases that support the gist of the argument made in this paper.

To what degree is the legitimacy of the U.S. Supreme Court currently at risk? Perhaps the most widely accepted view of how the Supreme Court acquires and maintains its legitimacy is positivity theory, which claims that the legitimizing symbols of judicial authority protect the Court's legitimacy from dissatisfaction with its rulings. Although research has shown that belief in legal realism does not itself threaten the Court's legitimacy, positivity theory suggests that portrayals of the Court as embroiled in politics—that is, as “just another political institution”—can undermine institutional legitimacy. Still, some recent research recognizes that ideological disagreement poses a serious threat to the legitimacy of the Supreme Court. Missing from extant literature is a reconciliation of how these three determinants—ideological dissatisfaction, legal realism, and perceptions of judicial politicization—combine to structure judicial legitimacy. Understanding the difference between perceptions of an “ideological” Court versus a “politicized” Court for institutional legitimacy is our central purpose in this article. We discover that the greatest threats to the Court's legitimacy lie in beliefs that judges are just ordinary politicians (not in ideological dissatisfaction or legal realism). We conclude by drawing out these findings’ implications for the upcoming highly politicized battles over nominations to the high bench.

This article considers prescription as a customary standard of legal validity which enables judges to identify certain customs as law even though the status of those customs as law cannot be ascribed to a law-making authority. Although claims as to customs having prescribed are often bound up with claims as to the quality (as opposed to the validity) of custom as law, prescribed custom is properly conceived to be a feature of the rule of recognition – a criterion by which a court can identify, and declare, a custom as already existing law as distinct from both custom without the force of law and custom turned into positive law.