Hasil untuk "Private international law. Conflict of laws"

Raquel Galeotti, Laura López-Gallego

Este artículo aborda una de las aristas más desconocidas en Uruguay del fenómeno de la violencia sexual, los ofensores sexuales y las respuestas de intervención psicológica en el marco de cambios en la política pública sobre violencia de género. Analizamos la implementación de un programa de atención psicológica a ofensores sexuales vinculado al contexto pospenitenciario. Para ello, se optó por el método de estudio de caso a partir de técnicas que incluyen diversas fuentes de información provenientes de entrevistas grupales con el equipo técnico, observación participante, entrevista con la dirección y análisis documental. Los resultados muestran que las intervenciones psicológicas hacia ofensores sexuales se implementaron en un contexto político-institucional de oportunidad, pero con dificultades en la legitimación y consolidación en la agenda institucional. El enfoque teórico-técnico que sustenta dichas intervenciones, así como las actitudes de los profesionales sobre los ofensores sexuales constituyen desafíos que requieren formación continua especializada.

Walter Arévalo Ramírez, Andrés Rousset Siri

In this essay, we analyze how different actors contribute to compliance with the advisory jurisdiction of the Inter-American human rights system. The essay briefly reviews the discussion around the binding force of, and compliance with, advisory opinions. It then analyzes how the holdings in advisory opinions issued by the Inter-American Court of Human Rights (IACtHR or Court) over the last forty years have had a notable impact on states and how different interstate actors, including the executive, the legislature, the national judiciary, and local regulatory bodies, ensure compliance.

Jovana Rajić Ćalić

Temporary-work agencies present in the labor market worldwide as a result of the flexibilization of work, economic crises, globalization, and digitalization, as well as the unemployment. There are more people looking for employment than jobs offered by employers for recruitment. Those kinds of situations may put workers employed through agencies in a discriminatory position. In addition, law systems mostly do not regulate the establishment and terms of temporary-work agency. As a result, so-called agency workers are offered bad terms of work, which can lead to abuse of this institute. On those grounds agencies for temporary employment are established, creating a triangle of contract relationships. The employee is therefore responsible for his work to an agency, and there is a special relationship between the user undertaking and the temporary-work agency. This kind of relationship might be positive for employees and their rights, first of all as regards the additional chances for employment. It might be also welcome for a user undertaking in urgent need of hiring, inter alia. On the other hand, this kind of work might cause more vulnerability for workers, in the sense of minoring their working rights. In this paper, the author brings up the thesis that the lack of provisions for work of agencies for temporary employment and the lack of supervision of their work might put agency workers in a discriminatory position compared to other workers, and it might also lead to their exploitation. It can be also argued that the work of these agencies requires the permanent protection of agency workers.

Christine Graebsch, Anette Storgaard

In this article, we use the example of prison leave to discuss prisoners’ access to justice. Based on a functional comparative analysis between Denmark and Germany, we study the law in action. In Germany, prisoners have a legally prescribed right of access to the courts in cases of denial of prison leave. However, in Denmark prisoners face more barriers when trying to access the court. In our analysis, we have compared Danish court cases with letters from German prisoners referring to their struggles with prison administrations and courts. The materials from both countries show more similarities than one would expect, given the significant differences between the substantive law in the two jurisdictions. While acknowledging the need for further empirical investigation, we introduce a concept we term “genuine justice”, with the aim of paving the way for other and more radical remedies supplementing the economic, legal and social measures already in place.

Eran Sthoeger

Advisory opinions of the International Court of Justice (ICJ) are non-binding and lack operative clauses requiring compliance. At the same time, they reflect the ICJ's views as to rights and obligations of states under international law. In that sense they are not different from binding judgments and generate expectations of implementation of the Court's determinations. Although some states may reject an opinion, others have pursued implementation through the requesting organ, or through alternative political and legal means. And although it is not always easy to ascertain the effect of an opinion on states’ behavior, advisory opinions often have practical ramifications, even if they are not implemented.

Michelle Rezky, Aji Lukman Ibrahim

There are often cases where irresponsible individuals create social media accounts using other people's personal identities as if the account is the original account of the person whose identity is being used, hereinafter referred to as fake social media accounts. Such actions can be threatened with Article 35 jo. Article 51 paragraph (1) of Law Number 11 of 2008 concerning Information and Electronic Transactions (ITE Law). The type of research used by the author in this study is prescriptive normative law research with a statute approach and a case approach. In Verdict Number 1739/Pid.Sus/2020/PN Jkt.Brt, the defendant was declared guilty of committing a crime under Article 28 paragraph (1) jo. Article 45A paragraph (1) ITE Law. Not only fulfilling the elements in Article 28 paragraph (1) of the ITE Law, but the defendant also fulfilled the elements in Article 35 of the ITE Law. However, the defendant was not found guilty of a criminal offense under Article 35 of the ITE Law, even though Article 35 of the ITE Law was one of the prosecutor's indictments. Based on this research, the defendant was not found guilty of a criminal offense under Article 35 of the ITE Law because  the form of the indictment in Verdict Number 1739/Pid.Sus/2020/PN Jkt.Brt is less precise. The form of indictment used by the public prosecutor is an Alternative Indictment where ideally the public prosecutor ought to use Cumulative Indictment on a concursus realis crime that the defendant committed.

Hamid Miri

Issuing an award by the arbitral tribunal, having an impact on the whole proceeding, resolving a dispute, having jurisdictional character and finality of decision are the most important criteria in order to distinguish award from other tribunal decisions. Notwithstanding, beside these criteria, sometimes in this regard, it should be referred to award legal description has been done by the legislator. Although the first criterion is not particular one for recognition award but the second criterion has been used to recognize procedural order and, in this regard,, I think that Impact ability is enough. Indifference on the conception of dispute resolution has raised difference opinions on the nature of some decisions and types of award. When we use the jurisdictional character of decision either it refers to the judicial power of arbitral tribunal or to dispute resolution. Indifference on the conception of dispute resolution has raised difference opinions on the nature of some decisions and types of award. When we use the jurisdictional character of decision either it refers to the judicial power of arbitral tribunal or to dispute resolution.

Daragh Murray

States are investing heavily in artificial intelligence (AI) technology, and are actively incorporating AI tools across the full spectrum of their decision-making processes. However, AI tools are currently deployed without a full understanding of their impact on individuals or society, and in the absence of effective domestic or international regulatory frameworks. Although this haste to deploy is understandable given AI's significant potential, it is unsatisfactory. The inappropriate deployment of AI technologies risks litigation, public backlash, and harm to human rights. In turn, this is likely to delay or frustrate beneficial AI deployments. This essay suggests that human rights law offers a solution. It provides an organizing framework that states should draw on to guide their decisions to deploy AI (or not), and can facilitate the clear and transparent justification of those decisions.

Kishanthi Parella

States and non-state actors, such as business organizations and NGOs, have varying preferences among regulatory options in business and human rights. Some actors prefer soft law governance while others advocate for legally binding solutions at the national and international levels. In this essay, I explore some of the factors that may explain why state and non-state actors hold these diverse preferences. I conclude that while some of these preferences may be attributable to the unique advantages of soft law or hard law, other preferences likely depend on the effects produced by the interaction of both types of law within the broader regulatory landscape.

Seyed Ghasem Zamani, vahid bazzar

In international investment law, the investor's negligence is considered to be a factor which affects the determination the amount of reparation. Thus, if a causal relationship is established between the investor's conduct and the damage, the amount of claimable damage will be reduced in accordance with the role of the investor in the damage. This rule, which can always be used against the respondent, is concerned with the determination of the amount of reparation after assuming responsibility. The duty to mitigation as one of the aspects of "injured party’s negligence" refers to a situation in which an investor refuses to prevent extension of damage after creation of damage and despite its ability. The proof of the investor's negligence is, contrary to the current procedures, with the defendant. It does not affect the jurisdiction of the arbitration tribunal or the responsibility of the host state and can only lead to a reduction in the amount of reparation. Third party participation or force majeure in creation of the damage cannot be the basis for applying the "injured party’s negligence" rule. This is also the case when the international community is considered to be an injured party or when the investor's negligence is the sole cause of damage.

Ricardo Rodríguez Luna

This research analyzes the possible links between gender, age and violence in the homicides that take place in Mexico. Based on statistical records, the degree of criminal responsibility and victimization of young men in this crime is outlined. Secondly, the way in which different criminology perspectives have explained the aforementioned problem is analyzed, specifically, how they have taken into account the male gender and age; about it, three different approaches are presented: the positivist, sociological and sexual difference. To conclude, from this last perspective, the preventive strategies that the Mexican government has set in motion to prevent excessive number of male deaths due to homicide are questioned.

John R. Crook

This essay outlines a quandary facing international investment dispute settlement (IIDS): the tension between the wish to curb “dual hatting” and the wish to increase the diversity of those appointed as arbitrators in IIDS cases. Thoughtful observers are concerned by the effect on IIDS, either in fact or as a matter of appearance, of lawyers who wear “dual hats”—one as arbitrator in IIDS cases, and a second as counsel representing clients in other IIDS matters. Concurrently, other thoughtful observers are concerned that appointments to IIDS predominantly go to a small cadre of established arbitrators caricatured as “pale, male and stale.” This concern has prompted efforts to increase the pool of female and minority arbitrators. However, these individuals would be drawn primarily from the ranks of younger practicing lawyers who must continue to practice unless and until they receive sufficient appointments to make full-time service as arbitrators economically feasible.

elham soleiman dehkordi, Seyed Mansour Mirsaedi

Financial Information has an important role in economic growth and development of trade competition system. It is considered in different sciences such as economics, accounting and so on.  Nevertheless , one of the important challenges in this regard is the recognition of financial Information, because by exploring this concept and its significance, the legislator can foresee civil and criminal arrangements for protecting this information. In relation to the meaning of this information, there are four possibilities. According to the first possibility, financial information is solely one of the instances of trade secret and is concerned with intellectual property law. According to the second possibility, financial information is the information in which any misuse leads to commercial and property loss. According to the third possibility, information that affects three constituent of expense, revenue and investor’s rights, is financial. According to the fourth possibility, information that has financial value is considered to be financial information. Among these possibilities, the fourth possibility is compatible with legal logic, because financial Information conforms with all of the criteria for being property.

Carlos Báez Silva

Il controllo di convenzionalità è la possibilità riconosciuta ad alcuni organi giurisdizionali di verificare la compatibilità di alcuni atti interni con trattati di diritto internazionale, in particolare con la Convenzione americana dei diritti umani. Tale tipo di controllo non costituisce una novità nell’ordinamento giuridico messicano, seppure per lungo tempo sia stato svolto soltanto da alcuni organi dello Stato. Il caso Radilla Pacheco e l’Expediente Varios 911/2010 hanno comportato una estensione dell'obbligo di effettuare tale controllo, che ora ricade su tutti gli organi dello Stato. Partendo da queste considerazioni, si analizzano in questo articolo le origini e l'evoluzione del controllo di convenzionalità in materia elettorale, soprattutto da parte della Sala Superior del Tribunal Electoral del Poder Judicial de la Federación, giurisdizione “pioniera” nell’applicazione di tale controllo. / 𝑇ℎ𝑒 𝑐𝑜𝑛𝑣𝑒𝑛𝑡𝑖𝑜𝑛𝑎𝑙𝑖𝑡𝑦 𝑐𝑜𝑛𝑡𝑟𝑜𝑙 𝑖𝑠 𝑡ℎ𝑒 𝑝𝑜𝑠𝑠𝑖𝑏𝑖𝑙𝑖𝑡𝑦, 𝑟𝑒𝑐𝑜𝑔𝑛𝑖𝑧𝑒𝑑 𝑓𝑜𝑟 𝑠𝑜𝑚𝑒 𝑐𝑜𝑢𝑟𝑡𝑠, 𝑡𝑜 𝑣𝑒𝑟𝑖𝑓𝑦 𝑡ℎ𝑒 𝑐𝑜𝑚𝑝𝑎𝑡𝑖𝑏𝑖𝑙𝑖𝑡𝑦 𝑜𝑓 𝑠𝑜𝑚𝑒 𝑖𝑛𝑡𝑒𝑟𝑛𝑎𝑙 𝑎𝑐𝑡𝑠 𝑤𝑖𝑡ℎ 𝑖𝑛𝑡𝑒𝑟𝑛𝑎𝑡𝑖𝑜𝑛𝑎𝑙 𝑡𝑟𝑒𝑎𝑡𝑖𝑒𝑠, 𝑖𝑛 𝑝𝑎𝑟𝑡𝑖𝑐𝑢𝑙𝑎𝑟 𝑤𝑖𝑡ℎ 𝑡ℎ𝑒 𝐴𝑚𝑒𝑟𝑖𝑐𝑎𝑛 𝐶𝑜𝑛𝑣𝑒𝑛𝑡𝑖𝑜𝑛 𝑜𝑛 𝐻𝑢𝑚𝑎𝑛 𝑅𝑖𝑔ℎ𝑡𝑠. 𝑇ℎ𝑖𝑠 𝑡𝑦𝑝𝑒 𝑜𝑓 𝑐𝑜𝑛𝑡𝑟𝑜𝑙 𝑖𝑠 𝑛𝑜𝑡ℎ𝑖𝑛𝑔 𝑛𝑒𝑤 𝑓𝑜𝑟 𝑡ℎ𝑒 𝑀𝑒𝑥𝑖𝑐𝑎𝑛 𝑙𝑒𝑔𝑎𝑙 𝑠𝑦𝑠𝑡𝑒𝑚, 𝑎𝑙𝑡ℎ𝑜𝑢𝑔ℎ 𝑓𝑜𝑟 𝑎 𝑙𝑜𝑛𝑔 𝑡𝑖𝑚𝑒 𝑖𝑡 ℎ𝑎𝑠 𝑏𝑒𝑒𝑛 𝑐𝑎𝑟𝑟𝑖𝑒𝑑 𝑜𝑢𝑡 𝑜𝑛𝑙𝑦 𝑏𝑦 𝑠𝑜𝑚𝑒 𝑆𝑡𝑎𝑡𝑒 𝑏𝑜𝑑𝑖𝑒𝑠. 𝑇ℎ𝑒 𝑐𝑎𝑠𝑒 𝑅𝑎𝑑𝑖𝑙𝑙𝑎 𝑃𝑎𝑐ℎ𝑒𝑐𝑜 𝑎𝑛𝑑 𝑡ℎ𝑒 𝐸𝑥𝑝𝑒𝑑𝑖𝑒𝑛𝑡𝑒 𝑉𝑎𝑟𝑖𝑜𝑠 911/2010 𝑙𝑒𝑑 𝑡𝑜 𝑎 𝑐𝑜𝑚𝑝𝑢𝑙𝑠𝑜𝑟𝑦 𝑒𝑥𝑡𝑒𝑛𝑠𝑖𝑜𝑛 𝑜𝑓 𝑠𝑢𝑐ℎ 𝑐𝑜𝑛𝑡𝑟𝑜𝑙, 𝑤ℎ𝑖𝑐ℎ 𝑛𝑜𝑤 𝑖𝑠 𝑝𝑙𝑎𝑦𝑒𝑑 𝑏𝑦 𝑎𝑙𝑙 𝑡ℎ𝑒 𝑆𝑡𝑎𝑡𝑒 𝑏𝑜𝑑𝑖𝑒𝑠. 𝐵𝑎𝑠𝑒𝑑 𝑜𝑛 𝑡ℎ𝑒𝑠𝑒 𝑐𝑜𝑛𝑠𝑖𝑑𝑒𝑟𝑎𝑡𝑖𝑜𝑛𝑠, 𝑡ℎ𝑖𝑠 𝑎𝑟𝑡𝑖𝑐𝑙𝑒 𝑤𝑖𝑙𝑙 𝑓𝑜𝑐𝑢𝑠 𝑜𝑛 𝑡ℎ𝑒 𝑜𝑟𝑖𝑔𝑖𝑛𝑠 𝑎𝑛𝑑 𝑒𝑣𝑜𝑙𝑢𝑡𝑖𝑜𝑛 𝑜𝑓 𝑡ℎ𝑒 𝑐𝑜𝑛𝑣𝑒𝑛𝑡𝑖𝑜𝑛𝑎𝑙𝑖𝑡𝑦 𝑐𝑜𝑛𝑡𝑟𝑜𝑙 𝑖𝑛 𝑒𝑙𝑒𝑐𝑡𝑜𝑟𝑎𝑙 𝑚𝑎𝑡𝑡𝑒𝑟𝑠, 𝑒𝑠𝑝𝑒𝑐𝑖𝑎𝑙𝑙𝑦 𝑎𝑠 𝑒𝑥𝑒𝑟𝑐𝑖𝑠𝑒𝑑 𝑏𝑦 𝑡ℎ𝑒 𝑆𝑎𝑙𝑎 𝑆𝑢𝑝𝑒𝑟𝑖𝑜𝑟 𝑑𝑒𝑙 𝑇𝑟𝑖𝑏𝑢𝑛𝑎𝑙 𝐸𝑙𝑒𝑐𝑡𝑜𝑟𝑎𝑙 𝑑𝑒𝑙 𝑃𝑜𝑑𝑒𝑟 𝐽𝑢𝑑𝑖𝑐𝑖𝑎𝑙 𝑑𝑒 𝑙𝑎 𝐹𝑒𝑑𝑒𝑟𝑎𝑐𝑖𝑜́𝑛, 𝑎 "𝑝𝑖𝑜𝑛𝑒𝑒𝑟" 𝑗𝑢𝑟𝑖𝑠𝑑𝑖𝑐𝑡𝑖𝑜𝑛 𝑖𝑛 𝑡ℎ𝑒 𝑎𝑝𝑝𝑙𝑖𝑐𝑎𝑡𝑖𝑜𝑛 𝑜𝑓 𝑠𝑢𝑐ℎ 𝑐𝑜𝑛𝑡𝑟𝑜𝑙.

Bizhan haji azizi, shahrzad ghafghazi alasl

Nowadays,one of the new methods for treatment of infertility from legal and medical perspectives is surrogacy, which has been considered more than forms of assistive reproductive. This method makes fertility possible for women who don’t have a normal pregnancy for whatever reason and give this chance to them to do it by surrogacy. One of the issues raised in this regard is parentage and the main question is who the child’s parents are? Intended parents or surrogate? According to Iranian law, the child belongs to owners of sperm and eggs. In the U.S. there are, however, different laws from one state to another. Some states consider the issue only on the basis of benefit and best interests of child. However, others believe that the child belongs to surrogate, and some other countries propose a solution by obtaining a pre-birth parentage order, which regards the child as belongs to intended parents

ghasem razai, ELYAS NOEE

“Causation” is of particular significance in tort law of Iran and England,particularly in the field of Negligence Law. Existing differences in Iranian legalsystem, as a civil law country, with English law, as a common law country,cause great difficulties in seeking a common perspective in order to examine theconcept of causation. Having said that, this is not an impossible task. In order toconduct a comparative study of causation under the legal systems of Iran andEngland, two principal subjects of “Hidden Tortfeasor” and “VisibleTortfeasor” are distinguished after scrutinizing “The State of Causation”. Onthe basis of the current criteria, an aspect of “Liable Tortfeasor” is examined,which determines a responsible one in the incident under “Tortfeasor” survey. Acertain connection is recognized between the damage and factors contributing tothe occurrence of the incident, but it is impossible to identify the liable factorthen “Hidden Tortfeasor” comes to the surface. According to noticeablesimilarities in Iranian and English law, the latter can present solutions forIranian law, and it can be used as a suitable model for Iranian legal system.Judges can consider the above-mentioned criteria adopted in English law incases in which no solution can be found in Iranian law or existing solution is notadaptable with conditions and nature of the dispute.

Rebecca White Berch, Erin Norris Bass

Judicial performance evaluations are a relatively new tool for assessing judges and providing information to voters to help them determine whether to retain judges in contested or retention elections. Arizona implemented its judicial evaluation program about 20 years ago, and since that time, the state has continually strived to improve its process. The result is that today Arizona has one of the most progressive and comprehensive judicial performance evaluation programs in the United States. This article takes a critical look at the strengths and weaknesses of Arizona’s program, keeping in mind two key values that the system seeks to protect: judicial accountability and judicial independence. Las evaluaciones del rendimiento judicial son una herramienta relativamente nueva para evaluar a los jueces y ofrecer información a los votantes, que les ayude a decidir si quieren reelegir a los jueces en las elecciones. Arizona implementó su programa de evaluación judicial hace unos 20 años, y desde ese momento, el Estado se ha esforzado continuamente en mejorar el proceso. El resultado es que hoy en día, Arizona tiene uno de los programas de evaluación del rendimiento judicial más progresistas e integrales de los Estados Unidos. Este artículo ofrece una mirada crítica a las fortalezas y debilidades del programa de Arizona, teniendo en cuenta dos valores clave que el sistema trata de proteger: la responsabilidad judicial y la independencia judicial. DOWNLOAD THIS PAPER FROM SSRN: http://ssrn.com/abstract=2533868

Joakim Nergelius

There is no doubt whatsoever that the papers presented in this volume cover a very wide, even extensive range of topics. This is of course logical, given the multi-disciplinary nature of this scientifical project.  Nevertheless, it is a pleasure to present no less than eight papers devoted to new results and ideas in fields as diverse as psychology, philosophy, political science and law, dealing with matters such as electoral behavior, globalization, the concept of democracy, the role of experts or the relevance of thinkers such as Plato and Hobbes for the current discussion on the EU constitution. DOWNLOAD THIS PAPER FROM SSRN: http://ssrn.com/abstract=1837316

Javier García Medina, Cristina Guilarte Martín-Calero

Este trabajo analiza si las soluciones dadas por el Derecho Civil en la protección de los ancianos son las más idóneas para amparar al anciano en las diferentes etapas de su vejez y señalar los derechos humanos implicados en esta situación y cómo habría que actualizar la regulación de la situación de los ancianos y de las instituciones que los amparan desde una óptica de derechos humanos. This work analyzes whether the solutions made by Civil Law in the protection of the elderly are best suited for protecting the elderly in different stage of old age and noted the human rights involved in this situation and how it should be update the regulation of the situation of the elderly and the institutions that the refuge from a standpoint of human rights. DOWNLOAD THIS PAPER FROM SSRN: http://ssrn.com/abstract=1968389