Parliamentary procedures are undoubtedly at the heart of (national) parliamentary sovereignty. However, in the last two decades, courts, including supranational ones (e.g. ECtHR), are increasingly ...getting involved in assessing the application of parliamentary rules and procedures. This increasing judicial activism highlights the importance of finding the equilibrium between the right to an effective judicial remedy, which inevitably should encompass parliamentary decisions, and the principles of separation of powers and parliamentary autonomy. This paper analyses a possible theoretical framework of (judicial) remedies against parliamentary procedural decisions, distinguishing between types of procedural rules, applicants, fora, extents of judicial activism and types of judicial review. It concludes that the different types of remedies are highly dependent on the political landscape and the government structure. It is yet advisable that a permanent, extra-parliamentary forum, a kind of “House-Rules-Court” should be established in countries, where the House Speaker does not enjoy full respect and neutrality.
Este artículo presenta una primera aproximación hacia los estándares de revisión en el derecho del common law y su posibilidad de aplicación en el sistema procesal civil chileno, planteados como una ...medida o umbral de deferencia o respeto de las cortes de apelaciones respecto del contenido de las decisiones de los tribunales inferiores de cara a su posibilidad de revocación. En ese esfuerzo, se analiza la estructura, función y contenido de los estándares en el derecho de anglosajón, principalmente de Estados Unidos y se expresa la importancia que reconocer su existencia en el derecho procesal contemporáneo puede tener tanto para la configuración como para la operatividad de un sistema de justicia.
This article examines the under-researched, inter-connected issues of substantive remedy and a role for Organization for Economic Cooperation and Development (OECD) National Contact Points (NCPs) to ...complement judicial remedy regimes involving civil liability for companies in home-state jurisdictions. Even where access to judicial procedural remedy exists, it need not ensure substantive remedy. Legal and economic resource-based power-disparities between parties can reduce victims’ opportunities to present and argue their case; and courts offer limited substantive remedy options compared with the types listed by the United Nations Guiding Principles on Business and Human Rights. The article argues that combining access to NCPs and judicial remedy offers important opportunities to address well-recognized challenges for victims’ access to substantive remedy, especially with strong NCPs. NCPs can operate in ways that courts normally cannot, to help give victims voice and a choice of substantive outcome. The European Union’s Corporate Sustainability Due Diligence Directive (CSDDD) proposal serves as a cue for the analysis. However, the issue is relevant for any OECD member or the OECD Guidelines adherent state.
There are two options for environmental tort remedy in China: resorting to environmental administration or environmental justice, with an ongoing debate over which of the two should lead. Firstly, it ...compares the structure of China's environmental tort remedy system and the two types of power: administrative power and judicial power, concluding that administrative power is dominant. Then, it argues for the indispensability of judicial power, attempts to find a clear boundary between the two sides, and justifies their mutual division of labor and collaboration. Through sufficient demonstration, it clarifies why the dominant position of environmental administrative power must be guaranteed. Then, it summarizes the experience of other countries and the practice of environmental protection in China; and provides three innovative paths of the future environmental rights remedy system. These three aspects are setting up a review procedure for administrative priority judgment before filing an environmental lawsuit, establishing the independent position of experts in environmental litigation, advocating a risk communication mechanism other than litigation, and providing a richer institutional guarantee for the relief of environmental rights.
The policy area of cooperation between fiscal authorities of Member States of the EU has historically been characterised by advanced patterns of administrative integration which, coupled with the ...sensitivity of the subject-matter in terms of potential impingement on taxpayers' rights, have made all the more problematic the gaps in effective judicial protection generally to be found in composite procedures set up by EU administrative law. This Article analyses two recent rulings delivered by the Court of Justice where what might be labelled as transnational judicial review has for the first time been accepted by the Court: the possibility that, in so-called horizontal composite procedures, the judiciary of the State to which the authority adopting the final act of the procedure belongs review, along with such latter act, preparatory acts adopted in earlier stages of the procedure by authorities of a different Member State. It strives to read the rulings against the broader background of the judicial dialogue currently engaged into by the European Court of Human Rights and the Court of Justice on the principle of mutual trust, and it argues that the progressive solution reached by the Court of Justice in those cases can be applied across all areas of EU administrative law, pivoting on the right to an effective judicial remedy, but also on other general principles of EU constitutional law (and, in particular, the principles of autonomy and uniformity of EU law).
En este trabajo se analiza el sistema de solución de diferencias en materia de inversiones extranjeras en los tratados de libre comercio de nueva generación desde la perspectiva del derecho a la ...tutela judicial efectiva. En concreto, se examina la compatibilidad del arbitraje de inversiones del CETA con los arts. 47 CDFUE, 6 CEDH y 24 CE.
In many Member States of the EU the view is taken that Art. 79 GDPR requires that complaints against violations of the GDPR can be lodged either with the data protection supervisory authority or with ...a court, at the choice of the data subject (a ‘double remedy’). However, where, in Member State law, the procedure for applying to a data protection supervisory authority according to Art. 77 GDPR and subsequently, to a court according to Art. 78 GDPR, satisfies the conditions that were established by the European Court of Justice in the case of
Puškár
, there is an ‘effective judicial remedy’ within the meaning of Art. 47 CFREU, so that no
additional
remedial path to a court needs to be foreseen in national law.
The protection of fundamental human rights in sport has increasingly been at the forefront of public consciousness over recent years. The response from the sport sector has been a number of measures ...that purport to bolster its own human rights credentials, with a number of key governing bodies taking steps to implement principles of international human rights law through soft regulation and institutional initiatives. With access to remedy representing a key pillar of human rights protections, however, the extent to which these measures can be enforced via third party adjudication is key to understanding the effectiveness of these developments. This article makes two key assertions. First, that the current system for adjudicating human rights complaints in sport lacks cohesion, effectiveness and credibility; it is consequently a ‘phantom regime’. Second, it will argue that the best means of addressing the accountability gap created by this phantom regime is through a closer alliance with principles of public international law—it will then proceed to examine the case for a specialist Court of Arbitration for Sport and Human Rights. In doing so, it will seek to emphasise the value of a functional adjudicatory system to the overall effectiveness of human rights protections in sport, and consider how best this objective might be achieved.
On 5 November 2015, the Fundão Dam collapsed, causing the most devastating tailings dam disaster to date. The dam was operated by Samarco S.A., a joint venture by Vale, Brazil’s biggest mining ...company, and BHP Billiton, the world’s largest mining company.1 Its tailings travelled down the Doce River for ca 700 kilometres until they reached the ocean, affecting 42 municipalities, two states, and thousands of communities along the way. The disaster caused myriad social, environmental and economic impacts: nineteen individuals were killed, and thousands endured physical or psychological harm; water resources and the soil were polluted; habitats were irreversibly destroyed; and the local economy suffered long-lasting damage. Traditional and indigenous communities were especially harmed, as their historical, social, religious and cultural relationships with their land led to even more profound harms.2
In spite of the efforts that both States and International Institutions have carried out to prevent Human Rights abuses related to development activities, the results obtained have not completely ...fulfilled the expectations. In fact, in some cases, they have contributed to weaken the delicate balance in conflict-affected areas, increasing poverty and marginalization. Indeed, the WBG activities in Fragile and Conflict States face several challenges regarding the implementation of the UNGPs and their analysis is crucial in the improvement of social risks linked with Banks operations in conflict-affected areas. To this regard, the present paper analyses the system created by the WB to avoid Human Rights violations and how it can be influenced by the UNGPs. The author has divided the WBG system in two structural elements: Operational Policies and the Bank Risk Assessment analyzing. At the same time the paper face the issue of the immunity regarding human rights violations.
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