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Copyright of Journal of Language & Law / Revista de Llengua i Dret is the property of Revista de Llengua i Dret and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

The judgment of the Supreme Court commented on here was devoted to the limitation of claims. One of the members of the partnership (the general partner) violated the non-competition clause and caused damage to the partnership. Another member (the limited partner) sued him for compensation for this damage. The Supreme Court adopted a resolution specifying the beginning of the limitation period for a claim to redress the damage caused. The legal assessment of the Supreme Court is correct. If the violation of the prohibition of competition consists in repeated behaviour, the claims of a partner provided for shall expire after six months from the date when all other partners became aware of the violation, but not later than after three years, counted separately for each behaviour. [ABSTRACT FROM AUTHOR]

This article looks into the development of Armenian legislation related to pledge, specifically the non-judicial foreclosure process of collateral, as well as an analysis of the decisions made by the Constitutional Court and the Court of Cassation in Armenia. The article offers an overview of the legal framework for pledge in Armenia, examining the evolution of pledge legislation, and highlights the importance of the non-judicial foreclosure process of collateral and its significance in the context of Armenian legislation. It analyses the legal framework and the processes involved in non-judicial foreclosure, and also looks into the challenges that arise when applying this process in practice. Furthermore, the article analyses the decisions of the Constitutional Court and the Court of Cassation in Armenia that have dealt with issues related to pledge and non-judicial foreclosure. It provides an in-depth analysis of the reasoning for and implications of these decisions, as well as the impact they have had on Armenian legislation and practice. In conclusion, the article sheds light on the development of Armenian legislation on pledge and provides a critical analysis of the non-judicial foreclosure process and related court decisions. [ABSTRACT FROM AUTHOR]

Copyright of Jurnal Jurisprudence is the property of Jurnal Jurisprudence and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Copyright of Jurnal Jurisprudence is the property of Jurnal Jurisprudence and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

The Seventeenth Amendment to the Constitution transformed the Constitutional Court from a specialist in constitutional matters to a generalist appellate court. Following this amendment, the Court has demonstrated ample willingness to accept its newfound role as the super appellate court in all areas of South Africa's law, and the limits supposedly imposed on the Court's jurisdiction by Section 167(3)(b) of the Constitution have developed and evolved through a jurisprudence riddled with inconsistencies. This article briefly illustrates these inconsistencies in support of its main claim, which is that it is problematic that the Court acts as a generalist court of appeal over decisions of specialised courts, especially when those decisions require engagement with complex factual assessments that fall outside the realm of the Court's expertise. To demonstrate this, the Court's jurisprudence and experience is compared in the specialised areas of labour law and competition law. This exercise indicates that in areas where the Court possesses expertise similar to what is statutorily envisaged for the relevant specialist courts, such as labour law, it has contributed positive developments that have given content to constitutional rights. On the other hand, the Court's jurisprudence in competition law is a disturbing indication of the shortcomings of the present system in terms of which the Court, without acknowledging its limited competition expertise, has overturned expert factual and economic findings of the competition courts. In the process, this has created uncertainty and undermined the legislative intent of the Competition Act 89 of 1998. This conundrum needs to be remedied through deliberate interventions to enhance the Court's competition expertise. [ABSTRACT FROM AUTHOR]

What is 'a court of a similar status to the High Court' and does it have the power to declare an Act of Parliament or executive conduct constitutionally invalid in terms of Section 172 of the Constitution of the Republic of South Africa, 1996? In this article I attempt to provide an answer to these questions. First, in defining a court of a similar status to the High Court, I defend the High Court's constitutional significance over courts established by statute. I argue that the power to invalidate Acts of Parliament and executive conduct inheres in the High Court because it is a lowercase-c constitutional court as opposed to a statutory court whose powers are limited to only those vested by a statute. This, I argue, has implications for a statutory court's competence to exercise the Section 172 power, contrary to the Constitutional Court's own jurisprudence. Beyond this, I argue that the phrase 'a court of a similar status to the High Court' merely indicates that that court has powers similar to those of the High Court when exercising its inherent jurisdiction in order to act equitably and reasonably in fulfilling its functions and nothing more. Second, I turn my attention to the jurisprudence of the Special Tribunal which has recently declared itself a court possessed of the Section 172 power and explain why, as a matter of constitutional law, it cannot possess the power of judicial review. Third, I will propose a framework for understanding the constitutional jurisdiction of courts other than, and courts of a similar status to, the High Court by drawing on and critiquing decisions of the Constitutional Court that have often been contradictory and poorly reasoned, and that have caused the confusion now pervasive in specialist court jurisprudence. I will conclude by arguing that the distinction between constitutional courts and statutory courts on the one hand, and between courts and tribunals on the other hand, as well as the allocation of the Section 172 power, recognises constitutional courts as a constitutive part of the state's ultimate political authority which is not subject to revocation by Parliament through legislation, and that our understanding of constitutional jurisdiction should reflect that. [ABSTRACT FROM AUTHOR]

In Thubakgale & Others v Ekurhuleni Metropolitan Municipality & Others [2021] ZACC 45, 2022 (8) BCLR 985 (CC), the Constitutional Court was confronted with a seemingly straightforward question: are constitutional damages competent and appropriate relief to vindicate an infringement of a socio-economic right? The Court was split in addressing this question. Jafta J's judgment answered the question in the negative because, in his view, socio-economic rights can never attract constitutional damages; whereas, the minority judgment, per Majiedt J, held that constitutional damages may be awarded to vindicate violations of socio-economic rights, provided such damages constitute effective relief in light of the facts. In this article, I argue that, despite the seemingly straightforward question, the Court reasoned itself into a Gordian knot. I identify several reasoning defects that reveal the underlying weakness in the asserted justifications proffered by Jafta J's judgment and to a degree, the minority judgment. I argue that the applicants all have property entitlements that are worthy of constitutional protection under Section 25(1) of the Constitution. I contend that Jafta J's judgment ignores the plain text of Section 38 and Section 172(1)(b) of the Constitution and impermissibly fetters this wide discretion afforded to courts. Jafta J's judgment also conflicts with previous jurisprudence of the Constitutional Court and the Supreme Court of Appeal. Undoubtedly, this has adverse consequences for the rule of law. Furthermore, Jafta J's reasoning creates inequality between litigants who claim relief for socio-economic rights violations and those who seek to vindicate their civil and political rights. Moreover, Jafta J's judgment mischaracterises all socio-economic rights as being subject to progressive realisation, and therefore courts can only examine the reasonableness of the legislative and other measures taken by the state. This is plainly not true as other socio-economic rights are not subject to the reasonableness standard. Jafta J's judgment also follows the long tradition of the Constitutional Court by conflating the right contained in Section 26(1) with the obligations that arise under Section 26(2). It is argued that rights and obligations are analytically distinct and should not be conflated. The starting point should be to give primacy to rights by setting out their entitlements and benefits that are a denouement of specific rights and to then consider the obligations as a secondary endeavour. The progressive realisation caveat qualifies the obligation but not the right. [ABSTRACT FROM AUTHOR]

In 2021, the Constitutional Court delivered judgment in Residents of Industry House, 5 Davies Street, New Doornfontein, Johannesburg & Others v Minister of Police & Others and Thubakgale & Others v Ekurhuleni Metropolitan Municipality & Others. In both cases, the Court refused claims for constitutional damages and adopted a test which appears to mean that such relief is only available as a last resort. This article advances three arguments: first, prior to the Residents/Thubakgale sequel, the case law disclosed a nuanced set of principles which explained when constitutional damages could be recovered. Second, in Residents and Thubakgale, the Court jettisoned these principles with little or no cogent explanation. Finally, despite this regrettable set of precedents, both judgments are so muddled that they have left open a window of opportunity for the Court to course correct, and adopt an approach to constitutional damages which does not unthinkingly relegate this relief to a measure of last resort. [ABSTRACT FROM AUTHOR]

After a 13-year wait for a final outcome in the hate speech complaint against Jon Qwelane, the Constitutional Court was expected to deliver a judgment which would, at long last, clarify the obscure meaning of section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (Equality Act). However, Qwelane v South African Human Rights Commission 2021 (6) SA 579 (CC) did not quite live up to expectations. While rendering a resounding and long-overdue recognition of the rights of Queer people, and the wrongs done to them, the Constitutional Court remedied much of the damage done by the Supreme Court of Appeal. But it wrongly found and 'fixed' unconstitutionality where there was none (by excising the word 'hurtful' and requiring hate speech always to 'promote or propagate hatred'), and failed to address the real problems with section 10 of the Equality Act, namely the confusing and convoluted objective-subjective test for imputing hateful intention to a speaker, and the unclear scope of defences. This article assesses the Court's reasoning in Qwelane, and explains what it got right and got wrong (with reference to other delictual law, and international and comparative law). Finally, it explores the obscurity (and unconstitutionality) the Court has left to linger in section 10 of the Equality Act. [ABSTRACT FROM AUTHOR]

The Supreme Court ruling of July 17, 2023 resolves an administrative appeal filed by the City Council of Orihuela against Royal Decree 638/2021, which modifies Royal Decree 773/2014 regarding the transfer through the Tajo-Segura aqueduct. The Supreme Court denies the active legitimacy of the City Council and declares the appeal inadmissible, as it considers that the Royal Decree does not affect the autonomy or the assets or rights of the Corporation. The court argues that the contested regulation mainly affects supralocal interests and does not justify the need for substitute representation by the City Council. Therefore, the appeal filed by the City Council of Orihuela is declared inadmissible. [Extracted from the article]

The Supreme Court Judgment of September 4, 2023 resolves an appeal filed by the Valencian Government against a judgment of the Superior Court of Justice of the Valencian Community. The Supreme Court must address three issues related to strategic environmental assessment, gender impact reports, and the requirement for alternative studies. The Supreme Court accepts the arguments of the Valencian Government and annuls the contested judgment. [Extracted from the article]

Constitutional law is concerned with the fact that the executive branch is responsible for the implementation of laws. The latter is also slightly different from a related concept, which is the application of laws, as evidenced by judicial practice. The concept of execution of a court decision is also understood from the point of view of the ECtHR, since the unreasonableness of the delay in rendering the decision entails the responsibility of the state in national legislation on the basis of Articles 6, §§ 1 and 13, ECHR, as the Court reminds "that the right to the execution of a court decision is one from the aspects of the right of access to a court... and that enforcement must be complete, perfect, and not partial." Effective execution of court decisions is an integral part of the requirements of Article 6 of the European Convention on Human Rights. Given the volume of cases pending before the Court and the instruments recently adopted by the Council of Europe in the field of law enforcement. There can be no reasonable doubt that the execution of the decision is an integral part of the right to effective judicial protection, as it is a logical consequence of the court's consideration of citizens' legal claims. The right to effective judicial protection and due legal procedure, as the timely implementation of decisions of the Constitutional Court is an imperative of the principle of legal certainty. It is a fundamental element of the requirement of efficiency, which is part of the process and guarantees compliance with the principles of supremacy and constitutional inviolability by all branches of government and citizens. The enforcement of judgments issued by constitutional courts or tribunals is adjusted to the right of the party in whose favor the judicial authority rules, so that those who issue them or those who are responsible for their execution are obliged to take the necessary and timely measures measures for their strict compliance, in accordance with current rules and procedures. [ABSTRACT FROM AUTHOR]

The Supreme Court Judgment of June 30, 2023 resolves the appeals filed by the Extremadura Regional Government, the City Council of Cáceres, and the entity Soluciones Extremeñas de Recuperación, SL, against a previous judgment that had declared the nullity of a specific amendment to the Municipal General Plan of Cáceres. The Supreme Court determines that the approval of a specific amendment to an urban planning instrument that modifies uses in non-urbanizable protected land, while maintaining the classification, may violate the principle of non-regression in environmental protection. Therefore, it rejects the appeals filed. [Extracted from the article]

The article analyzes the legal consequences of the decision of the Constitutional Court No. 1-р/2023 of February 7, 2023 for the regulation of labor relations between the employer and teaching staff who are paid an old-age pension, and for the practice of resolving labor disputes regarding the recognition of their dismissal and reinstatement as illegal. Different types of situations are considered. For example, if such labor relations lasted/continues after February 7, 2023 and a labor dispute has not yet arisen, the most optimal "way out" from the point of view of the theory of labor law is to transfer teachers who are paid an old-age pension, by order of the employer, to open-ended labor contracts. Various variants of the influence of the decision of the KSU No. 1-r/2023 of February 7, 2023 on the practice of resolving labor disputes were also studied. Such labor disputes are being systematized. The following groups of authors are distinguished: 1) labor disputes that arose after February 7, 2023 and, accordingly, were considered after this date; 2) labor disputes that arose before February 7, 2023, but were considered/reviewed after February 7, 2023; 3) labor disputes that arose and were considered by the court until February 7, 2023, if the decision was not reviewed or its review was completed before this date. The article concludes that the disputes of the first group are not characterized by problems. Court practice shows that such lawsuits to declare dismissal illegal and reinstatement are decided in favor of the plaintiffteacher, who is paid an old-age pension. Labor disputes of the second group are resolved ambiguously in judicial practice. In one of the cases, the Supreme Court noted that the contested decision was based on the law that was in force at the time (as of the date of adoption of such a decision), and therefore no violations of substantive or procedural law were observed. On the other hand, in another case under a similar situation, the Supreme Court returned the case for a new consideration, pointing out the absence of other legal mechanisms for revising the court's decision, which is based on an unconstitutional norm. Labor disputes of the third group are the most problematic and debatable, because formally, the final decision in the case was made before the adoption of the KSU decision No. 1-r/2023. Review of such cases under exceptional circumstances due to recognition as unconstitutional of the provisions of par. 3 ch. 2 Art. 22 of the Law is impossible. Violation of appellate or cassation review of such cases is complicated by missing the deadlines for such an appeal. "Summary" of the KSU decision under "newly discovered" circumstances is a debatable issue, although, in our opinion, in general, such an option is not excluded. [ABSTRACT FROM AUTHOR]

The article examines approaches to the interaction of decisions of the Court of the European Union (CJEU) and international obligations in the field of human rights with the constitutional identity of states. Attention is focused on the concepts of "national identity" and "constitutional identity", their relationship, and the introduction of the concept of "national identity" into the European legal order after the signing of the Maastricht Treaty (1993). Attention is drawn to the fact that the primary law of the EU does not contain the concept of "constitutional identity", but this term is widely used in the decisions of the constitutional courts of several EU member states. In these decisions, the constitutional courts raised the issue of the protection of the constitution and constitutionality in the EU member state given the harmonization of legislation and/ or ultra vires decisions. The article notes that the concept of constitutional identity is broad, it covers the historical, political, cultural, and legal identity of the state, as well as the connection of national law with the international and autonomous legal order of the EU. The idea of constitutional identity is dynamic and constantly evolving due to the continuous development of the states themselves. The analysis of various approaches to this interaction based on the German Federal Constitutional Court, Hungarian Constitutional Court, and Italian Constitutional Court was carried out. It is noted that the interaction of CJEU rulings with constitutional identities is based on the principle of primacy of the EU law, and international human rights obligations are based on the conventional feature of the "obligation of uniform interpretation" and universal standards while ignoring the constitutional tradition of the states. It means that CJEU judgments have a higher legal force than national court judgments, while international human rights obligations should become precedents for subsequent national court judgments, not lowering the national standards of human rights protection. [ABSTRACT FROM AUTHOR]

In the next Supreme Court term beginning in October 2023, the Justices will hear argument on whether the Mandatory Repatriation Tax (MRT), passed as part of the Trump administration's 2017 Tax Cuts and Jobs Act (TCJA), violates the Sixteenth Amendment. Even if the Moores win on their individual MRT refund suit, the MRT on corporate shareholders could survive-and that tax on mega-companies that have retained billions in overseas affiliates forms the most significant part of the expected MRT tax. Even if the Court agrees that the Sixteenth Amendment authorizes accrual-based taxation, making an annual mark-to-market accrual income tax such as that under section 475 constitutional, the Court could possibly conclude that the MRT look-back period is an unreasonably long period for taxation under the accrual method. [Extracted from the article]

We examine the effect of a U.S. Supreme Court decision regarding abortion laws on Americans' preferences for political candidates. The decision was leaked in advance of the official announcement, and we track the evolution of political preferences from before to after the leak and, eventually, to after the formal announcement. The abortion issue was already very important to voters before the leak, but the Court's decision did not simply make it more important for everyone. We find that the decision decreased the importance weight of abortion for Republicans, while increasing it for independents/nonvoters. Further, the decision increased Republican support for candidates who want to ban abortions although this effect is diminished for candidates that oppose exceptions for rape, incest, or the mother's health. Nonaffiliated voters move sharply away from candidates who want to ban abortions without exceptions. The decision also resulted in a lasting polarization along gender lines whereby men became more likely to vote for a candidate that supports a ban on abortion, while women are less likely to support candidates that ban abortions. This paper was accepted by David Simchi-Levi, marketing. Supplemental Material: The data files are available at https://doi.org/10.1287/mnsc.2023.4802. [ABSTRACT FROM AUTHOR]

The commentary contains a criticism of the judgment of the Supreme Administrative Court, in which the problem of the constitutionality of limitations on the openness of administrative court proceedings in proceedings before the Provincial Administrative Court has been reduced to linking the statutory limitation with the constitutional value enabling such a limitation. The Supreme Administrative Court did not conduct a proportionality test. Carrying it out and taking into account the normative and factual context, would imply a statement that the restrictions at the time of issuing the challenged judgement of the Provincial Administrative Court were not even useful for a specific purpose. They also did not meet the criteria of necessity and proportionality in the strict sense. [ABSTRACT FROM AUTHOR]

Copyright of Revista CES Derecho is the property of Universidad CES and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Copyright of Ius et Praxis (07172877) is the property of Universidad de Talca and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Copyright of Ius et Praxis (07172877) is the property of Universidad de Talca and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

School administrators have often been admonished that it is illegal for teachers and other employees to pray in front of students. Kennedy v. Bremerton School District, also known as "the praying football coach" decision, appears to have changed that, but many questions remain as to the extent and implications of this unprecedented U.S. Supreme Court decision. This article describes why this court case was so significant. It summarizes the relevant facts of the case and the Court's majority and dissenting opinions. The article also provides school leaders with guidance about how to respond to this seminal case by concluding with five implications of the Court's decision. [ABSTRACT FROM AUTHOR]

The integration of open law policy into Constitutional reforms has emerged as a focal point for numerous legal scholars in Indonesia over recent years, with criminal law being a particularly contentious subject of debate. Some stakeholders advocate for the Constitutional Court to exhibit boldness in addressing this vital issue, although Constitutional Court judges have emphasized their limitations in expanding the interpretation of adultery. This legal study aims to investigate the integration of open law policies in Constitutional Court decisions and their influence on legislative development in Indonesia. Employing a legislative research approach, data is gathered from various primary and secondary sources. Conceptually, this research explores the impact of Constitutional Court decisions, which incorporate open legal principles, on the Indonesian legal system. The findings reveal that the concept of open legal policy lacks clear boundaries in Constitutional Court rulings, leading to confusion between positive and negative legislative roles in legislative practice and judicial oversight. Additionally, the decisions based on the open justice policy highlight discord among Constitutional Court judges concerning the legalistic paradigm and the application of legal constraints, resulting in legal uncertainty in society. The study also offers significant recommendations to enhance the integration of open law policy in Constitutional Court reforms. [ABSTRACT FROM AUTHOR]

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Copyright of Revista Inciso is the property of Universidad La Gran Colombia, Seccional Armenia and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

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The Constitutional Court’s Decision number 68/PUU-XX/2022 has sparked substantial debate among various societal factions. The controversy stems from the interpretation that the ruling potentially enables ministers to misuse their authority and exploit state resources for electoral advantages while running for President or Vice President, without necessitating resignation from their current position. This study seeks to discern the ramifications of the Constitutional Court’s decision number 68/PUU-XX/2022 on the roles and authorities of ministers within a presidential government structure, and to scrutinize the decision from an Islamic law/siyasah perspective. This investigation adopts a descriptive qualitative approach, grounded in library research. The normative juridical methodology is employed, focusing on decision number 68/ PUU-XX/2022. The study concludes that within the context of siyasah sharia, the decision could compel the nation’s leader (the President) to promulgate legal regulations that violate the principle of fairness between high-ranking and ordinary officials. However, the President risks being deemed unconstitutional if derivative regulations stemming from the decision are not enacted. Power abuse by state officials (ministers), partly driven by conflict of interest, is a critical concern. From the perspective of Islamic law/siyasah, the decision’s implications could potentially harm society and the government. [ABSTRACT FROM AUTHOR]

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The Supreme Court Judgment of February 8, 2023 resolves an appeal filed by Naturgy Generación S.L. against a judgment of the High Court of Justice of Catalonia. The appeal refers to the taxable base in the Special Coal Tax and whether the "higher calorific value" or gross (HCV) or the "lower calorific value" or net (LCV) should be taken into account. The Supreme Court considers that the taxable base of the tax is constituted by the energy power of coal, expressed in gigajoules (GJ), taking into consideration the higher calorific value of coal. This decision is based on the environmental purpose of the tax. [Extracted from the article]

The research investigates the reasons behind the surge in the number of expulsion cases awaiting resolution by the Constitutional Court of Hungary during the initial year of the pandemic by conducting an analysis. Identity between the cases examined can be discovered along issues related to factual and legal merits, which in several cases is the cause of the problem and the effect of which draws attention to the right to an effective remedy. The study focuses on the factual and legal issues of decisions on expulsion and entry and residence bans from the point of view of legally established third-country nationals residing in Hungary. The study explores Constitutional Court and high court decisions of the period compared to the relevant case law of the Supreme Court in a comprehensible manner and digs up the roots of the identified common problems. Exploring the legal basis in the light of basic international and EU law obligations, both access to classified documents and a system of appeal against decisions constitute a set of complex, completely independent and unrelated procedures, that ultimately means that the facts on which the expulsion is based, which are also particularly difficult to ascertain, cannot be effectively disputed. [ABSTRACT FROM AUTHOR]

Recently, the Supreme Court of Nigeria in Tega Esabunor v Faweya & Ors (2019) LPELR 46961 (SC) dismissed an appeal seeking to quash the order of a magistrate court for the transfusion of blood to a baby. The appellants contended that the court had no jurisdiction to make the order. The crux of the case was whether the parents' right to consent to the child's treatment based on religious beliefs supersedes the child's right to live, thus reflecting the tension between a parent's right to give consent to the choice of treatment for their child, and the court's power to override such rights through the inherent parens patriae jurisdiction of the state. The case also reflects the tension between the freedom of a parent to practise their religion and the right of a child to live, in the medical context. This article examines the findings of the Supreme Court in Tega Esabunor's case, considering whether the court's decision is in line with the generally accepted practice on when the state can intervene if persons with parental responsibility refuse medical treatment for an incompetent child because of religious beliefs. Cases from other jurisdictions are analysed to ascertain the position of foreign courts. It is submitted that the Supreme Court's judgment reflects accepted international practice regarding parental refusal of consent for medical treatment of a child. [ABSTRACT FROM AUTHOR]

This contribution takes a look at the recent Google Android judgement of the General Court as a case study of antitrust informed by behavioural economics - the study of not fully rational economic agents. It contrasts the General Court's pragmatic approach to economic evidence to the U.S. Supreme Court's willingness to delve into economic theory, where the latter can prove more of an obstacle to the development of behavioural antitrust. It further concedes that cases relying on behavioural theories of harm can prove to be less predictable from a legal standpoint. This, nevertheless, does not obviate older legal tests, which might just need to be reformulated as requiring an analysis of effects, in line with the General Court's rhetoric on the necessity to avoid false convictions in such cases. Lastly, the contribution argues that the relevance of behavioural antitrust will not fade in its entirety with new regulatory tools addressing similar issues. [ABSTRACT FROM AUTHOR]

The Supreme Court Judgment of January 9, 2023 resolves an appeal filed by the Central Union of Irrigators against the lack of execution of the administrative act regarding the request for environmental information from the Segura Hydrographic Confederation. The Supreme Court determined that the silence produced should be considered negative, applying the Transparency Law 19/2013. The judgment establishes that the Administration's silence in response to a request for environmental information should be interpreted in a negative sense and highlights the need to review Law 27/2006 to establish a legal framework specific to the right of access to environmental information. [Extracted from the article]

The Supreme Court Judgment of January 30, 2023 resolves an appeal filed by a commercial company against a judgment issued by the High Court of Justice of Castilla y León. The appeal refers to the exemption of taxes on hydrocarbons for the production of electricity from biogas. The Supreme Court determines that the production of electricity from biogas falls within the framework of promoting renewable energies and, therefore, enjoys direct exemption, while the production of energy from fossil sources may establish exceptions for environmental reasons. [Extracted from the article]

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Copyright of Bucerius Law Journal is the property of Bucerius Law School e.V. and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

In Daniels v Scribante (hereafter the Daniels case) the Constitutional Court had to decide whether: (a) the Extension of Security of Tenure Act 62 of 1997 (ESTA) afforded Ms Daniels the right to make improvements to her dwelling; (b) if consent from the person in charge, Mr Scribante, was a requirement for Ms Daniels to make such improvements; and (c) if consent was not a requirement, if Ms Daniels could effect improvements to the total disregard of Mr Scribante. The judgment in Daniels is important not only because it paved the way for Ms Daniels to effect improvements on her existing dwelling without the consent of Mr Scribante, but also because it showed that under section 8(2) of the Constitution of the Republic of South Africa, 1996 (hereafter the Constitution) on the application of the Bill of Rights Mr Scribante owed a positive obligation to Ms Daniels to ensure that she lived in conditions that afforded her human dignity. In Daniels the Constitutional Court indicated that private landowners were enjoined by section 25(6) of the Constitution through ESTA to accommodate ESTA occupiers on their land. According to the Constitutional Court in Daniels, the nature of the obligation imposed by section 25(6) of the Constitution was both negative and positive, and in this particular case it rested on Mr Scribante. Against this background, this case note provides at the outset the salient facts and judgment of the Daniels case. This is followed by an analysis aimed at critiquing the judgment in Daniels pertaining to what is expected of private landowners in the new constitutional dispensation. It is concluded that more may be required from the private landowner – a positive duty – to ensure that ESTA occupiers enjoy fundamental rights. [ABSTRACT FROM AUTHOR]

Section 30P of the Pension Funds Act 24 of 1956 (hereafter PFA) is an important procedural tool that allows those dissatisfied with the Pension Funds Adjudicator's determinations to apply to the High Court for such determinations to be set aside. This article discusses this section and demonstrates that neither the legislature nor the courts have provided clarity on whether what is intended by this section is an appeal, a review or a reconsideration of determinations of the Pension Funds Adjudicator. It also illustrates the confusion that has been created by the courts with the High Court referring to this procedure as sui generis and the Supreme Court of Appeal, without referring to previous High Court decisions, referring to this procedure as an appeal in the wide sense. In this article a reflection on whether these two formulations are synonymous or if there is a need to settle for only one of them will be made. Furthermore, a call for judicial reconsideration of the applicability of the Plascon-Evan Rule in section 30P applications will be made in this article. [ABSTRACT FROM AUTHOR]

In its judgment in Qwelane v South African Human Rights Commission 2022 2 BCLR 129 (CC), the Constitutional Court declared section 10(1) of the Equality Act unconstitutional and invalid to the narrow extent that section 10(1)(a) refers to the intention to be "hurtful". The prohibition on hate speech passed constitutional muster in all other respects. In addition, the court purposively interpreted aspects of the application of section 10(1) so as to limit its impact on the right to freedom of expression. This contribution firstly welcomes the court's reliance on the transformative goals of the Constitution and the Equality Act as its primary framework in interpreting section 10(1). The severance of section 10(1)(a) and the conjunctive reading of sections 10(1)(b) and (c) ("be harmful or to incite harm" and ʺpromote or propagate hatred" respectively) also seem sensible considering the court's broad definition of "harm". The article further emphasises that the terms of section 10 call for a proper consideration of context. In this regard, the court rightly considered the extreme homophobia in the society addressed by Mr Qwelane, the particular vulnerability of the target group and the real threat of devastating imminent consequences to conclude that Qwelane's words were clearly intended to "incite harm" and "propagate hatred". Yet the court's view that the speaker's subjective intention is irrelevant in performing the requisite objective reasonableness assessment from the ambit of section 10(1) is arguably less judicious, as is the categorical exclusion of expression in private. Ultimately, the objective case-by-case reasonableness inquiry under section 10(1) should be whether a reasonable person in the speaker's position should have refrained from making the impugned harmful discriminatory utterances. This inquiry involves a determination of wrongfulness based on the constitutional duty not to discriminate unfairly. It invokes all the aspects of the Equality Act's definition of discrimination as well as all the elements of fairness analysis set out in section 14 of the Equality Act. Factors to be considered include the value of the particular expression, and the extent of the (potential) harm to individual members of a protected group and to society as a whole, as well as justification considerations such as the respondent's legitimate and bona fide exercise of the right to freedom of expression and to privacy. [ABSTRACT FROM AUTHOR]

Land and land rights remain a contested issue in South Africa. Grobler v Phillips centered on the eviction of an 86-year-old woman, Mrs Phillips, and her disabled son from property she had lived on since she was 11 years old. After a fourteen-year court battle the Constitutional Court granted an eviction order against Mrs Phillips. This case note consists of a discussion of the judgments of the Magistrate's Court, High Court, Supreme Court of Appeal and Constitutional Court. It is found that the Constitutional Court erred in its decision as it applied a formalistic approach, disregarded the narrative of the occupier and did not sufficiently challenge the current neo-liberal regime in which property rights operate. [ABSTRACT FROM AUTHOR]