This article begins a discussion of administration interpretation as an autonomous enterprise. It approaches administrative interpretation as a legal practice in its own light, having its own customs ...and normative constraints. While it compares administrative interpretation with judicial practice, it does not focus on the relationship between courts and agencies. Instead, it aims to understand both the normative and positive dimensions of administrative agency interpretation of statutory language.
As scholars in the Global Administrative Law project have recognized, doctrines familiar from domestic administrative systems are beginning to appear, in nascent forms, in some areas of international ...law. This article makes a first attempt to examine the appearance of one such doctrine, the duty to give reasons for administrative decisions, in international case-law. The existence of and rationales for this duty have been contentious in many domestic jurisdictions. The article thus considers the extent to which these debates have been replicated amongst adjudicators at the international level. The focus is on cases in the areas of WTO law, investment law and human rights law. It is found that the case law is not yet extensive, and (perhaps as a result) that no coherent picture emerges. In contrast to domestic systems, the areas examined in international law demonstrate some agreement on the desirability of the duty. However, different international adjudicators have recognized different rationales for the duty, with only limited consensus even within each area of international law studied.
Argentina Mairal, Héctor A.
The Annals of the American Academy of Political and Social Science,
03/2009, Letnik:
622
Journal Article
Recenzirano
Argentina does not have a general class action statute, but a 1994 constitutional reform allowed actions that defend collective interests and other third generation rights (e. g., the right to a ...healthy environment), granting standing to associations and to the Ombudsman. The Supreme Court restricted these actions to the protection of truly collective interests, thus rejecting them when they were brought to defend multiple homogeneous interests (e. g., small damages for many consumers). A recent amendment of the Consumer Protection Law allows the Ombudsman, as well as associations, to sue for damages caused to consumers and grants erga omnes effect to the judgment. Similar rules are included in federal and provincial laws that protect the environment.
Portugal Antunes, Henrique Sousa
The Annals of the American Academy of Political and Social Science,
03/2009, Letnik:
622
Journal Article
Recenzirano
The science of Law cannot ignore the phenomenon of the influence in Europe of the language, practice and teaching of American law, within an Americanization of Law which takes place alongside the ...Americanization of European culture. With regard to representative group litigation, Portuguese law has implemented a general set of rules in this area (Law 83/95). The law in force covers popular action to prevention, to the prosecution of offenses and to claims for damages. Popular action includes, amongst other interests protected by the law, public health, the environment, quality of life, consumers'rights, cultural heritage and the public domain. Standing is granted to any citizen who enjoys civil and political rights, and to associations and foundations, regardless of whether they have a direct interest in the claim or not, with the res judicata binding all members of the class who have not exercised their right to opt out.
Switzerland Baumgartner, Samuel P.
The Annals of the American Academy of Political and Social Science,
03/2009, Letnik:
622
Journal Article
Recenzirano
Switzerland has the traditional Austro-German representative association procedures. Debate on adoption of other models, given the opportunity of the introduction of a first federal Code of Civil ...Procedure, reveals considerable cautious conservatism toward reform.
Secured and unsecured creditors engaged in a bankruptcy process have different preference on the issue of financial distress. Secured creditors generally prefer liquidation whereas unsecured ...creditors tend to promote firm’s reorganization. As a consequence, secured creditors might be an obstacle to reorganization when all classes of creditors have to vote to approve the reorganization plan. To complete this analysis, we study the link between bankrupt firm’s capital structure and the likelihood of reorganization when bankruptcy Courts (instead of creditors) decide whether or not firms are reorganized. Our main result is that the reduction of secured creditors’ influence on the reorganization process might constitute a means to promote bankrupt firm’s reorganization. More generally, the paper analyses the link between the amounts/numbers of both secured and unsecured claims and the final issues of a Court-supervised reorganization process.
This Article explains how judicial independence can develop in regimes that are not fully democratic. Conventional wisdom holds that a strong legislature and political parties are necessary for the ...emergence of an independent judiciary. This Article challenges conventional wisdom by explaining how judicial independence may arise in the absence of these conditions. It presents a theory of how judicial independence emerges and why and when other political actors will respect it. It also explains why courts may be better poised than legislatures to counter executive power in non-democracies. The theory is developed through a discussion of cases involving Islamic headscarves and veils in Middle Eastern courts. These cases have broad political implications because of their significance to Islamists, who pose the biggest challenge to the power of traditional elites in majority-Muslim countries; they also have broad legal ramifications with respect to judicial power, individual rights, constitutional convergence, religious freedom, and the relationship between shari'a and state law. The Article also explains how national courts have interpreted Islamic law and challenges the notion that courts function to secularize state-sponsored religion. To the author's knowledge, this Article contributes the most complete discussion in the English-language academic literature of recent high court cases in Egypt, Kuwait, and Turkey, which were translated for this Article, thus contributing to the body of foreign constitutional case law available for comparative study.
The tendency to resort to administrative penalties in the wake of the expansion of the regulatory state has generally been ascribed to the need to lessen judicial workload and streamline procedures ...so as to induce compliance through speedy enforcement. This article, however, articulates the historical singularity of the German experience ivith administrative penalties in the decades following World War II. Specifically, it draws attention to the manifold links between the major statutory developments through which the Ordnungswidrigkeit sanctioning system took shape and the larger economic, political, and social changes whereby the Federal Republic of Germany acted to break with its Nazi past and secure its foundations as a sovereign, democratic Rechtsstaat.
Compared to its first-to-third century antecedents, the Roman imperial court of the fourth century exhibits markedly distinctive features; certain differences may be judged cosmetic, but others ...suggest a transformative shift in the court as a social and administrative institution. This discussion focuses on: the applicability to the Late Roman case of an influential generalizing theory of court formation and society, and the partial anticipation of modern "court studies" discourse by Gibbon; the altered social composition and expanded size of the court's personnel, the structural complexity of its bureaucratic apparatus, and their combined transformative effects; the role of purposeful reforms and innovations as drivers of long-term change; Ammianus' perceptions of the transformed court.
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