La situación de ausencia del demandado en un procedimiento puede deberse por múltiples causas y también producir varias consecuencias. En el auto del TSJ de Madrid la ausencia se produce en el ...procedimiento de exequátur, por lo que las consecuencias que de ello se derivan serán diferentes de las que se habrían producido de haber estado ausente durante el procedimiento ante el tribunal extranjero.
La excepción del orden público internacional en su vertiente procesal en conjunción con el derecho de defensa juega un papel esencial para otorgar o denegar el exequátur, pues el poder defenderse en juicio es un principio fundamental que está protegido, tanto a nivel nacional como internacional. Sin embargo, no toda limitación de este derecho es una violación automática del orden público internacional.
This article compares the regulatory framework (consisting of common law, agreements to mediate and legislation) governing the allied concepts of confidentiality and without prejudice privilege as ...they apply to the mediation of non-family law civil disputes in Queensland, New South Wales and Victoria. The analysis demonstrates that there is: lack of uniformity in regulation between, and within various jurisdictions; inconsistencies and conflict between multiple sources of regulation; illogical gaps in the framework; and fragmented and inaccessible explanations where accessibility refers to the ability of mediation participants to find and understand relevant provisions. These features of the regulatory system explain, in large part, why mediation providers often fail to give the parties clear and comprehensive explanations about these important mediation concepts. The article concludes by highlighting some of the issues around which reform efforts need to be focused if the regulatory system, and access to relevant information, is to be improved.
Mediation is a dispute resolution process that is more informal and less expensive than litigation, offering confidentiality and encouraging party voice. In medical negligence, parties can experience ...the benefits that arise in the discourse of mediation, including an explanation about the medical error, or an expression of an apology. In this study, 24 senior tort lawyers were interviewed to explore the use of mediation in medical negligence. Data analysis shows that the participants valued mediation in medical negligence disputes as a case management tool that assisted clients to avoid the stress of litigation. Some lawyers specifically referred to the 'Civil Procedure Act 2010' (Vic) as promoting mediation. As repeat Players and advocates, the participants shielded their client from the legal system and dominated the mediation process. The majority of participants discouraged their client from speaking and prevented emotional engagement and dialogue with the tortfeasor. This research found that the model adopted by the senior tort lawyers resembles an evaluative or settlement style of mediation. The lawyers stymied the full potential of the process and diminished opportunities for party voice. The authors argue that better education for tort lawyers regarding the benefits of mediation would better meet the non-legal and emotional needs of disputants.
Mediation is a dispute resolution process that is more informal and less expensive than litigation, offering confidentiality and encouraging party voice. In medical negligence, parties can experience ...the benefits that arise in the discourse of mediation, including an explanation about the medical error, or an expression of an apology. In this study, 24 senior tort lawyers were interviewed to explore the use of mediation in medical negligence. Data analysis shows that the participants valued mediation in medical negligence disputes as a case management tool that assisted clients to avoid the stress of litigation. Some lawyers specifically referred to the 'Civil Procedure Act 2010' (Vic) as promoting mediation. As repeat Players and advocates, the participants shielded their client from the legal system and dominated the mediation process. The majority of participants discouraged their client from speaking and prevented emotional engagement and dialogue with the tortfeasor. This research found that the model adopted by the senior tort lawyers resembles an evaluative or settlement style of mediation. The lawyers stymied the full potential of the process and diminished opportunities for party voice. The authors argue that better education for tort lawyers regarding the benefits of mediation would better meet the non-legal and emotional needs of disputants.
Mediation is a dispute resolution process that is more informal and less expensive than litigation, offering confidentiality and encouraging party voice. In medical negligence, parties can experience ...the benefits that arise in the discourse of mediation, including an explanation about the medical error, or an expression of an apology. In this study, 24 senior tort lawyers were interviewed to explore the use of mediation in medical negligence. Data analysis shows that the participants valued mediation in medical negligence disputes as a case management tool that assisted clients to avoid the stress of litigation. Some lawyers specifically referred to the 'Civil Procedure Act 2010' (Vic) as promoting mediation. As repeat Players and advocates, the participants shielded their client from the legal system and dominated the mediation process. The majority of participants discouraged their client from speaking and prevented emotional engagement and dialogue with the tortfeasor. This research found that the model adopted by the senior tort lawyers resembles an evaluative or settlement style of mediation. The lawyers stymied the full potential of the process and diminished opportunities for party voice. The authors argue that better education for tort lawyers regarding the benefits of mediation would better meet the non-legal and emotional needs of disputants.
The fate of arbitral awards annulled at the seat of arbitration is unclear in Korea because neither the Arbitration Act nor the New York Convention offers any guidance for courts to follow. Rather, ...courts have discretion on how to proceed. To address such ambiguity this paper starts by assessing the applicable Korean legal framework, followed by a summary of the two conflicting views on how to interpret Article V(1)(e) of the New York Convention as well as pertinent court jurisprudence. Between the traditional view that annulled arbitral awards are unenforceable and the delocalisation theory which argues otherwise, this paper finds that Korean courts should adopt a two-step test centered on Article 217 of the Civil Procedure Act. Specifically, due to the principle of state sovereignty, Korean courts must first conduct a preliminary analysis under Article 217 to evaluate the effectiveness of the foreign judgment which annulled the problematic award. If the court cannot recognize the foreign judgment, then it should treat the annulled award in the same manner as any other arbitral award. If the foreign judgment must conversely be recognized, then the award no longer exists under Korean law and the court should accordingly dismiss the action.
The right of a child offender to participate effectively in criminal proceedings is a fundamental aspects of a right to a fair trial and is guaranteed in the Constitution of the Republic of South ...Africa, 1996 as well as in international instruments, including the United Nations Convention on the Rights of the Child. An arguments is made that ensuring that this right is fully realised at domestic level, allowances should be made for child offenders to be included in the provisions of section170A of the Criminal Procedure Act 51 of 1977. Section 170A makes allowances for the use of an intermediary by witnesses and victims when presenting testimony in criminal proceedings. It is argued that the best interest of the child principles as well as other rights such as the right to dignity and equality enshrined in the Constitution and guaranteed in international instruments warrants the inclusion of child offenders in the enabling legislation. An interpretation and implementation of Section 170A of the Criminal Procedure Act in line with the Constitution and international instruments that gives recognition to the child offender’s vulnerability and enforces the best interests of the child offender is accordingly advocated
This article compares the regulatory framework (consisting of common law, agreements to mediate and legislation) governing the allied concepts of confidentiality and without prejudice privilege as ...they apply to the mediation of non-family law civil disputes in Queensland, New South Wales and Victoria. The analysis demonstrates that there is: lack of uniformity in regulation between, and within various jurisdictions; inconsistencies and conflict between multiple sources of regulation; illogical gaps in the framework; and fragmented and inaccessible explanations where accessibility refers to the ability of mediation participants to find and understand relevant provisions. These features of the regulatory system explain, in large part, why mediation providers often fail to give the parties clear and comprehensive explanations about these important mediation concepts. The article concludes by highlighting some of the issues around which reform efforts need to be focused if the regulatory system, and access to relevant information, is to be improved.
Drawing-up an Administrative Procedure Act constitutes a priority, especially considering the entry into force in 2013 and 2014 of the four fundamental acts of Romania. We think that the Bill for the ...Administrative Procedure Act must be reconsidered by reference to the provisions of the New Civil Procedure Act and the practice of the courts of law in its application, and with a special focus on contentious administrative matters. The present work aims at nothing else but to point out certain aspects which should be taken into consideration for the correlation of the Bill for the Administrative Procedure Act with the provisions of the new civil procedure legislation.
The paper analyses the rules contained in the Austrian Civil Procedure Act. Although this act was adopted back in 1895, it is still in force. This continuity is a proof of the great value of this ...legislative document. This Act has had a significant influence on the Central and Eastern European procedural laws. From the period of its enactment, despite preserving its fundamental components, the Austrian Civil Procedure Act has been through a number of modifications, including the amendments that were introduced towards the end of 20th and in early 21st century. More recent modifications are a result of the influence of common European procedural law and concern the issues like jurisdiction, enforcement of decisions, proceedings concerning payment orders, special litigations, non-contentious proceedings. The Austrian civil procedural law, as a normative system, accompanied by a rich literature and creative judicial practice, has influenced the Serbian law, whose system and particular institutes have accepted the solutions contained in the Austrian law. The paper gives an overview of the systems and basic institutes of the Austrian civil procedure: complaint, response to the complaint, preliminary hearing, main hearing, evidence and evidentiary hearing, court's ruling. The aim is to consider the existing contents of the Austrian Civil Procedure Act in the context of reforms of the Serbian Civil Procedure Act.
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