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Spanish Abstract: La excepcion, instrumento juridico con que el demandado intentaba excluir la accion del demandante, nace en el derecho procesal romano, pasa al derecho canonico y el derecho castellano y se adapta de acuerdo con las condiciones locales del derecho canonico en Indias. Este articulo expone detalladamente la regulacion de las excepciones procesales en el ordenamiento de la Iglesia catolica en las Indias durante el periodo comprendido entre los siglos XVI al XVIII, segun las fuentes normativas de mayor uso y circulacion. El autor ofrece un analisis del concepto, sus clasificaciones y formas de tramitacion, asi como de la interaccion entre el foro civil y el eclesiastico. La exposicion abarca las normas aplicables, tanto en el campo del derecho canonico universal como las especificas de la Iglesia en Indias. En este ultimo campo, la regulacion de las excepciones tuvo en cuenta las enormes distancias geograficas en el Nuevo Mundo, que exigian medidas que atemperasen la prolongacion y carestia de los pleitos; las dificultades de la Corona para conocer con certeza las circunstancias que rodeaban una decision, como podia ser la concesion de una encomienda; y la necesidad de proteger a los indios, entre otros aspectos. El articulo finaliza con un balance historiografico de la institucion. English Abstract: The exception, a legal instrument by means of which the defendant tried to exclude the plaintiff's action, arose in Roman procedural law, it passed to canon law and Castilian law, and was adapted to the canon law for the Spanish territories according to local conditions. This paper analyses in detail the regulation of procedural exceptions in the legal system of the Catholic Church in Hispanic America and the Philippines between the 16th and 18th century, according to the most widely used and circulating normative sources. The author provides an analysis of the concept, its classifications and forms of processing, as well as the interaction between the civil and ecclesiastical forum. It covers the applicable norms, both in the field of universal canon law and those specific to the Church in Spanish America. In this respect, the regulation of exceptions took into account the enormous geographical distances in the New World, which demanded measures to mitigate the duration and costs of lawsuits. These exceptions also considered the difficulties of the Spanish Crown to know with certainty the circumstances of a decision such as the granting of an ‘encomienda’, as well as the need to protect indigenous people, among other topics. The paper concludes with a historiographic overview of this legal institution.

The Problem of the Prior in Criminal Trials by Christian Dahlman and Eivind Kolflaath, address a classical challenge to the Bayesian approach. The Chapter examines different ways of setting the prior probability of the prosecutor’s hypothesis in a criminal trial, in particular, the classical Bayesian solution of setting the prior at 1/N, where N is the number of possible perpetrators in the geographical area where the crime was committed. Dahlman and Kolflaath argue that this solution is at odds with the presumption of innocence, and that other proposals are also problematic, either theoretically or in practice. According to Dahlman and Kolflaath a presumed prior determined ex lege is less problematic than other solutions, and the problem of the prior can be avoided by a reconceptualization of the standard of proof.

Portuguese abstract: O Seminario sobre direito processual internacional, ja em sua quarta edicao, ocorreu na plataforma Teams nos dias 28 de junho e 5 de julho de 2021. Trata-se de uma realizacao do Nucleo de Pesquisas Justica Administrativa em Contexto - NUPEJAC , com o apoio do Nucleo de Estudos sobre Direito, Cidadania, Processo e Discurso - NEDCPD. Ele teve como objetivo compartilhar os estudos e debates realizados especialmente no âmbito da disciplina Direito processual das causas transnacionais, do Programa de Pos-Graduacao em Direito (Mestrado e Doutorado) da Universidade Estacio de Sa – PPGD-Unesa. Na presente obra, divulga-se o resumo expandido das comunicacoes que foram apresentadas por discentes do referido PPGD-Unesa, a saber: Rovil Reis Peixoto do Nascimento (Aspectos gerais e conceituais sobre cooperacao juridica internacional e alcance); Geovana Faza da Silveira Fernandes, Jose Alcy Pinheiro Neto (Dever de cooperar e nao cooperar); Marcelo Paar Santiago (Juizo de delibacao: as legislacoes brasileira, ibero-americana e europeia); Viviane Luci Maia da Costa (Auxilio direto: a modalidade de cooperacao juridica passiva na efetividade da jurisdicao transnacional); Eurico de Jesus Teles Neto (O sistema de carta rogatoria no Brasil, em paises do Mercosul e na Europa); Debora Maliki, Luisa Silva Schmidt (Litispendencia e conexao internacionais); Clara Tereza Barros Leda Carvalho, Marcelo Pinto Chaves (Principio da autonomia: um estudo sobre as clausulas de eleicao de foro a partir da Convention on Choice of Court Agreements); Elder Loureiro de Barros, Anderson Loureiro de Barros Correia (Principio da efetividade: regras de competencia internacional e o alargamento do Principio da efetividade); Elvan Loureiro de Barros Correia (Cooperacao internacional direta: medidas de urgencia); Dalila Vanessa Costa Stecanella, Julio Cezar da Silveira Couceiro (Reconhecimento de decisao estrangeira: procedimento); William Teodoro da Silva Filho, Edimar Carmo da Silva (Execucao de sentenca estrangeira: processamento no direito brasileiro). English abstract: The Seminar on international procedural law, already in its fourth year, was held on the Teams platform on 28 June and 5 July 2021. It was an event of the NUPEJAC (Research Center for Administrative Justice in Context), with the support of the NEDCPD (Research Center on Law, Citizenship, Procedure and Discourse). Its objective was to share research and host discussions specifically on the subject of procedural law in transnational cases, in the Postgraduate Program (Masters and Doctorate of Law) of Estacio de Sa University – PPGD-Unesa. This work provides an expanded abstract of the papers presented by students of PPGD-Unesa, i.e. Rovil Reis Peixoto do Nascimento ("General and conceptual aspects on international judicial cooperation and scope"); Geovana Faza da Silveira Fernandes, Jose Alcy Pinheiro Neto (Duty to cooperate or not to cooperate); Marcelo Paar Santiago (judicial assessment of delibazione: Brazilian, Ibero-American and European legislations); Viviane Luci Maia da Costa (Mutal assistance: the role of passive judicial cooperation in the effectiveness of transnational adjudications); Eurico de Jesus Teles Neto (The letter rogatory system in Brazil, Mercosur countries and Europe); Debora Maliki, Luisa Silva Schmidt (International lis pendens and connection); Clara Tereza Barros Leda Carvalho, Marcelo Pinto Chaves (Principle of party autonomy: a study on choice-of-court clauses from the Convention on Choice of Court Agreements); Elder Loureiro de Barros, Anderson Loureiro de Barros Correia (Principle of Effectiveness: international jurisdiction rules and the extension of the Principle of Effectiveness); Elvan Loureiro de Barros Correia (Direct international cooperation: urgent measures); Dalila Vanessa Costa Stecanella, Julio Cezar da Silveira Couceiro (Recognition of foreign decisions: procedure); William Teodoro da Silva Filho, Edimar Carmo da Silva (Enforcement of foreign judgments: processing under Brazilian law).

Nepal is the federal democratic republic recently. Prior than 1950’s, it had Hindu Indigenous system as a part of legal system along with the values of various ethnic groups. Afterwards, the reception of foreign law has been taken place gradually with voluntary and mandatory basis. Peremptory norms are already adapted by it. It is in the process of alignment to global legal system. Moreover, it has the domination of common legal system. However, partial acceptance of civil legal system and socialist legal system are also found. It is the secular country with right to religion to people. In the early time, Nepal was the ideologue of ancient world religious system through saintly penance. It has long adopted religious tolerance and cultural harmony with liberal attitude of the people. Rule of law, separation of power, limitation, laches, natural justice, principle of precedence etc. are adopted by the court as a part of procedural law and substantial law. The codification process is ongoing from 1380 AD. Direct and indirect legislative process is equally accepted. Although it doesn’t have public and private law classification, these indicators are found in the form of substantial and procedural law.

The Problem of Naked Statistical Evidence by Christian Dahlman and Amit Pundik, joins the most recent debates on naked statistical evidence, in particular the objections to naked statistics based upon sensitivity, normalcy, incentives for lawful conduct, and free will. Dahlman and Pundik argue that the problem of naked statistical evidence is not an epistemic problem, as some assume, but is actually a moral problem.

Written for a symposium honoring Steve Burbank’s contributions to procedure scholarship, this Essay takes Geoff Hazard’s monograph, Research in Civil Procedure, as its point of departure. Hazard was remarkably prescient in forecasting our modern predicament, posing timeless questions about the role of history and doctrine, the emphasis on normative claims and law reform, the centrality of legal theory, and the rise of empirical and other discipline-based scholarship. After surveying the challenges facing legal scholars, procedural and otherwise, the Essay concludes with a note of appreciation for Burbank’s ability to couple a command of doctrinal nuance with sophisticated empirics in crafting a powerful account of the variegated institutions of procedural law reform.

The adoption of the Federal Rules of Civil Procedure was a major victory for progressives in the United States. The Rule made access to justice less about one’s ability to hire a high-priced lawyer and more about the swift determination of the merits of the dispute between the parties. Despite efforts of some business interests to alter the rules, by most accounts, by most accounts, the Rules have been successful. But occasional conflicts between the application of federal vs. state law in diversity actions create hard policy choices. As a rule, in diversity actions, federal courts must apply state substantive law and federal procedural law. Of course, drawing the line between substance and procedure often presents courts with difficult vertical choice of law problems. At time, the application of a federal rule may impair significant state substantive interests. However, allowing litigants too easily to challenge the application of a federal rule conflicts with the overall goal of the Rules, which should advance the “just, speedy, and inexpensive determination of every action and proceeding.” Satellite litigation to determine whether a federal or state rule applies cuts against the policy of inexpensive and uniform application of the federal rules. Two recent conflicts between federal and state law present challenges in the application of Court precedent. In Twombly v. Bell Atlantic Corp. and then in Ashcroft v. Iqbal, the Supreme Court rewrote F.R.C.P. 8(a)(2)’s liberal pleading standard, making access to court more difficult for many plaintiffs. Some states have rejected those holdings and adhere to the more liberal standard reflected in the adoption of the Rules. And yet, plaintiffs face more stringent pleading requirements when defendants can remove actions from state to federal court. Application of federal law impairs an important state substantive policy: liberal access to justice. The second conflict that has divided federal court is whether a federal court must apply federal pleading and summary judgment rules in defamation cases when the state would apply special anti-SLAPP provisions. Those provisions make dismissal of certain defamation actions easier than in cases that do not involve First Amendment speech challenges. Again, at issue is the conflict between the uniform application of the relevant federal procedural rules and an important state substantive policy, the advancement of free speech. These two areas present special problems. Generally, federal procedural rules should apply. The two problems discussed in this article present special problems where application of federal law impairs important state interest. Normally, one could expect the Court in conjunction with the Judicial Conference’s Advisory Committee on Civil Rules to revise the rules. Under Chief Justice John Roberts’ leadership, the conference’s members are now “ideologically predisposed to think like Federalist Society members, demographically predisposed to think like elite white males, or experientially predisposed to think like corporate defense lawyers.” As a result, progressive reforms of the Rules are not likely to originate with the Court and the Advisory Committee. As a general matter, Congress should take a limited role in reforming the Rules. At the same time, Congress has created special rules in the past. For example, it did so for overtly pro-business reasons in its adoption of special pleading standards that were part of the 2005 Class Action Fairness Act. This article argues for Congress to act to modify the F.R.C.P. in two specific areas: one would clarify that more generous state pleading rules must apply to actions removed from state courts in diversity actions, the other would make clear that state pleading and summary judgment rules should apply when the controlling state law includes anti-SLAPP provisions.

German Abstract: In der aktuellen COVID-19 Pandemie findet in vielen deutschen Bundeslandern Schulunterricht ohne Masken- und/oder Abstandspflicht statt. Auch sind mogliche Ausnahmen von der Schulpflicht nur unter sehr strikten Voraussetzungen moglich. Die fur Fragen des Schulrechts zustandigen Bundeslander halten weiterhin an der Schulbesuchspflicht als einzig zulassiger Form der Erfullung der Schulpflicht fest. Die Schulpflicht in Deutschland bleibt trotz der aktuellen Infektionsrisiken und der mangelnden Praventiosnmasnahmen an Schulen weiterhin mit der Androhung von Busgeldern und Haftstrafen fur Eltern verbunden. Vor diesem Hintergrund erwagen einige Eltern, beim Bundesverfassungsgericht Verfassungsbeschwerde wegen der Verletzung ihrer Grundrechte als Eltern sowie wegen der Verletzung der Grundrechte ihrer Kinder einzulegen. Dieser Text zeigt die besonderen prozessrechtlichen Herausforderungen auf, welche es potentiellen Beschwerdefuhrern erschweren durften, vor dem Bundesverfassungsgericht Erfolg zu haben - aber auch die Konstellationen, in denen ein derartiges Vorgehen sinnvoll sein kann. English Abstract: In the current COVID-19 pandemic, school classes are ongoing in many German states without an obligation to wear a mask and/or keep your distance. Exceptions from the duty to attend school in person are only possible under very strict conditions. The German states, which have the competence to regulate schooling, continue to rely on the duty to attend school in person as the only legal way to comply with the duty to attend school. Despite the current risk of infection and the lack of preventative measures in schools, the duty to attend school continues to be backed up by the threat of fines and imprisonment for parents. Against this background a number of parents are currently considering lodging constitutional complaints at the Federal Constitutional Court over the violation of their fundamental rights and those of their children. This text shows some of the procedural challenges which are likely to make it difficult for potential claimants to be successful at the Federal Constitutional Court - but also the constellations in which this approach can make sense.

Forthcoming in a journal's special issue on exoneration in various European countries. This article reviews exoneration in Sweden, with emphasis on the procedure of applying for exoneration. First, it highlights some core features of Swedish criminal procedural law, necessary to understand exoneration in the Swedish context. Second, it outlines the possibilities in Swedish law to apply for exoneration, both in favour of the applicant and to the disadvantage of a previously acquitted defendant. Third, it identifies some challenges with the current Swedish model of administering applications for exoneration. Fourth, it argues that these challenges could be removed by introducing into Swedish law a review committee that administers applications for exoneration.

This is the introductory chapter of an edited volume which combines a wide range of analytical perspectives and themes in order to investigate questions that link institutional changes within the court system and legal environment with developments in criminal procedure law. The chapter begins with a review of the literature on post-2013 legal institutional reforms before turning to the context and content of procedural law changes and court reforms. It then discusses the role of the SPC as an initiator of criminal procedure amendments and promoter of legal institutional reform. The most significant change in the judicial structure, that caused by the introduction of the supervision commissions, is examined from the perspective of ongoing court reforms and the balance of power amongst the various actors within the judiciary. The chapter then turns to the criminal procedure law reforms enacted in 2012 and 2018, discussing the new mechanism of pre-trial detention, the criminal justice reform goal of ‘trial-centredness’ and criminal reconciliation in public prosecution cases. As the contextual factors of criminal trials often have a decisive impact on the trial outcome, such factors as performance evaluations of courts and judges and media scrutiny of criminal cases are subsequently analysed. Finally, the chapter concludes with a summary of the key issues and findings of the volume as a whole.

During the 1990s and 2000s, 70 percent of Latin American countries transitioned from an inquisitorial criminal procedure to a U.S. adversarial model in a phenomenon known as the Latin American Criminal Procedure Revolution (LACPR). The LACPR involved more than 19 countries, and cost around 1.51 billion dollars. Almost two decades after its implementation, the impact of the most significant procedural reform undertaken on the continent remains largely unexplored. Using Colombia as a study case, I explore the LACPR effect in pre-trial detentions using two methodological strategies. First, I exploit the exogenous variation resulting from the LACPR gradual implementation to estimate a difference-in-difference and an event study model. Secondly, I estimate the impact of the LACPR in pre-trial admission and release rates using a regression analysis controlling for co-founding variables and time-trends. The results provide compelling evidence that the U.S. adversarial model decreased the number of inmates in pre-trial detention, specifically male detainees. However, the results show that the decline is not associated with a decrease in the use of pre-trial detention (human rights gain) but to an increase in procedural speediness (efficiency gain).

The aim of the article is three-fold: 1) It engages and develops the theory of procedural rule of law into EU constitutional law. This theory was relied in EU Law by Pr. Claire Kilpatrick in the context of the Euro-area crisis (Oxford Journal of Legal studies, 2015). 2) It discusses the historical and normative roots of the doctrines of effet utile, effectiveness and effective judicial protection present in the ECSC and CJEU case law. 3) It puts into context and analyses the ruling of the German Constitutional Court in Weiss/PSPP delivered on the 5th of May 2020.

During the 1990s, Latin America experienced a criminal procedural revolution (LACPR) when approximately 70% of its countries abandoned their inquisitorial system and adopted the U.S. adversarial model. Followed the LACPR, the region experienced a dramatic increase in crime, consolidating it as one of the most violent areas in the world. Despite previous empirical evidence indicating that procedural law affects criminal behavior, the effects of the LACPR continue highly unexplored. In this paper, we use the Latin American case to evaluate the impact of an adversarial reform on crime rates. Exploiting the quasi-experimental implementation in one key country— Colombia—we use an event study approach combined with a difference-in-difference with variation in treatment timing to estimate the reform’s consequences on criminal activity. Despite the opposite incentives the reform created, we find an increase associated with the procedural transformation in overall crime rates (22%), violent crime (15%), and property crime (8%). However, we observe a dramatic decrease in drug offenses associated with lower arrest rates. Our findings contribute to the literature on Latin American crime and the link between procedural law and criminal behavior.

The article deals with the appointment of a forensic computer investigator expertise in the investigation of crimes, in particular in the field of information and communication technologies. The author touches upon the procedural peculiarities of drawing up the resolution on the appointment of computer forensics, which involves the study and preparation of an expert opinion on the issues, the resolution of which requires special knowledge in the field of information and communication technologies. The article indicated the problem of observance of norms of the criminal procedural law in the appointment of computer forensics to conduct a preliminary check to report the crime.

At the time elite Americans abandoned or modified Christian theologies of perdition, American procedural law relied ever more strongly on the traditional link between law and the theology of divine punishment: the testimonial oath. While conventional histories of American evidence law tell a rather straightforward modernization story of a move from premodern sacral modes of prooftaking to rational forensic modes of examination, this paper shows that oathtaking did not diminish under modern law reform but significantly expanded with the influence of New York's code of 1848. For the first time in America, procedure codes required all pleadings to be sworn by the parties, and all parties and interested witnesses were made competent to take the oath and testify on the stand. Lawyers at first expected the dread of cross examination to deter perjury, but they quickly adjusted their theories in practice to detect lying under oath, which they believed had become rampant under the codes. The lawyers' faith in their ability to detect truth were stymied as racialized witnesses came before the bar. In order to account for racial disqualifications on testimony in a world increasingly open to party testimony (and perjury), lawyers revived an older theology of perdition, swirling together supposedly premodern and rational modes of investigation well into the twentieth century.

This article about the Brazilian Maritime Tribunal is related to the research activities of the author in the field of international procedural law and administrative procedural law. The author tries to present a descriptive and propositive approach to the subject in four parts considered essential: 1. Historical Origin of the Maritime Tribunal 2. Jurisdiction of the Maritime Tribunal. 3. Regarding the quasi-judicial nature of the Maritime Tribunal as an administrative adjudicatory body. 4. Res judicata status of Maritime Tribunal decisions and the doctrine of judicial deference

This entry in the Max Planck Encyclopedia of International Procedural Law, titled Panel: Dispute Settlement System of the World Trade Organization (WTO), comprehensively covers all aspects of dispute settlement before WTO panels, as well as panel proceedings within the overall WTO dispute settlement system. This includes informal and formal consultations; the establishment and composition of panels; the sequence of proceedings; access for non-disputing parties; and the role of of the WTO Secretariat. The article also covers various elements of the panel process, including terms of reference, the standard of review, the applicable rules of interpretation, questions of evidence, the use of experts, the confidentiality of panel proceedings, panel expenses, and impartiality. It finally touches on how developing countries participate in the panel process and what the consequences are of the WTO's Appellate Body suspension.

The international community in the 21st century is more legalized and more judicialized than at any other period in history. Yet today’s international legal order is also fragmented, leading to concerns about the proliferation of specialized legal regimes, adjudicated by an uncoordinated assemblage of international courts and tribunals. In this volume, we and our fellow authors explore international judicial cooperation, competition, and cross-fertilization “beyond fragmentation.” Existing scholarship on international legal fragmentation, we suggest, has moved through three phases in recent decades. In the first phase, practitioners and scholars reacted with alarm to the judicial proliferation of the post-Cold War years, which they feared would create systemic problems of overlapping and contested jurisdiction, as well as conflicting and divergent interpretations of law. Following this period of “postmodern anxieties,” the new century saw the pendulum swing towards towards a second, more optimistic school of thought, which empirically identified (and normatively championed) a series of techniques whereby international judges could “manage” fragmentation through dialogue and cross-fertilization, producing convergence and unity in international law. Most recently, in the opening salvos of a third wave, skeptics have questioned the management account, pointing to the mixed motives of international judges and the limits of cross-fertilization. Building on this debate, this volume interrogates the record of cross-fertilization, cooperation, and competition among international courts and tribunals. In doing so, we address three important themes. First, we examine the phenomenon of cross-fertilization in the area of procedural law, finding that that courts do indeed learn and borrow from each other in establishing procedural rules, which show signs of convergence. Second, we examine the more complex experience of cross-fertilization in substantive international law, where we find greater variation among international courts and tribunals in their willingness to refer and defer to others. Third and finally, we investigate the agents of cross-fertilization, including not only judges but also international governmental organizations, international court registries and arbitral secretariats, member states, litigants, and counsel. Each of these actors, we suggest, possesses mixed motives, weighing their (perhaps weak) interest in the coherence of the international legal system against their (perhaps dominant) interests in their own regional or substantive legal order or values, or indeed with simply winning their current dispute. The picture that emerges is one in which international judicial cross-fertilization is both real and important, but also highly variable and asymmetric across courts and issue-areas, and likely to remain so.

The present document intends to provide an overview on certain elements that should be taken into account in the legislative development of the EC’s framework on cross-border access to electronic data by law enforcement (so-called eEvidence proposal). To do so, the qualitative and quantitative analysis carried out by the KU Leuven Centre for IT and IP Law considers the current legal framework at European and Member State levels together with key judgements of the European Court of Justice. The quantitative analysis provides the outcomes of the survey that has been carried out with representatives from law enforcement agencies and competent authorities of selected countries within the EU.

This chapter argues that judicial dialogue on the scope of the Return Directive has resulted in an ever more dense covering by EU law of the diverse national procedural practices applied to third-country nationals who are regarded as illegally staying by the Member States. Some of these rulings, for example those in Gnandi and K.A. thus exemplify an intricate legal configuration of diverse, overlapping and intersecting legal regimes, in which slowly and surely, little decision-making power of administrative authorities is solely regulated by national law. An increase in legal questions potentially covered by EU law also transpires from cases brought before the Court of Justice in which Member States have resorted to their criminal law to ‘regulate’ irregular migration. In this particular area we see that previous rulings regarding the delimitation of EU law and national law by the Court of Justice have spurred new preliminary questions, which – no matter how technical the court keeps its approach - will inevitably draw into the sphere of EU law questions that were previously reserved for national administrative, criminal or constitutional courts. This dynamic is illustrated by taking a close look at the case that was recently referred to the Court of Justice by the Dutch Supreme Court, regarding the compatibility of Dutch criminal law on irregularly staying third-country nationals with EU law. I argue that the question referred to the Court can only be answered by situating it within the larger context of the Charter, and principles of criminal procedural law protected in the constitutional traditions of the Member States and by the ECHR, most notably legality.

The transposition period for the Damages Directive (104/2014/EU) ended on 26 December 2016. In terms of its temporal scope, the Directive prohibits the retroactive application of substantive provisions prior to that date but leaves it to the discretion of Member States whether to apply procedural provisions to proceedings initiated at any day after 26 December 2014. This distinction raises two questions: First, what is the legal nature of the Directive’s provisions and which provisions form part of procedural and which of substantive law? Second, is the determination of substantive law provisions as opposed to procedural law provisions a matter of domestic law or EU law? This paper attempts to answer those questions for the Directive’s provisions in relation to the statute of limitations, the burden of proof and the disclosure regime. It argues that the legal nature should be determined by EU law and studies whether Member States’ transposition has deviated from the classification under EU law. The analysis finds divergence in the temporal applicability of the new rules and conflicts with the determination of rules under EU law.

This article argues that it is crucial that international water law treat the duty to cooperate as a substantive rule (as opposed to procedural), alongside the two traditional substantive principles of ‘no significant harm’ and ‘equitable and reasonable use’. The duty to cooperate imposes many general obligations on states, such as the obligation to notify, consult, and conduct an environmental impact assessment. I suggest that this duty should give rise to other specific cooperative obligations, such as to make every effort to enter into provisional arrangements until a final resolution of the dispute is reached and to not jeopardize or hamper such final resolution. I argue that such obligations will lead to better resolution of international fresh water disputes than the traditional substantive principles ‘no significant harm’ and ‘equitable and reasonable use’ on their own.

This article offers an account of how American law changed from a system once dominated by traditional doctrines of private law into a legal culture where questions of procedure, public law, and statutory interpretation uniquely predominate. Using contemporary Anglo-Commonwealth law as a mirror, I raise skepticism at the easy notion that classical common law doctrines are simply unfit for the modern administrative state. Instead, I offer a theory about the role of conceptual legal thought in maintaining the legal order. The article demonstrates how each system funnels its central questions towards the areas of law understood as conceptually sound. Thus, though realism successfully deconstructed private law, American conceptual analysis migrated to public, statutory, and procedural law — and in turn these areas have become increasingly significant. By contrast, conceptualized private law remains at the center of Anglo legal analysis while there is correspondingly less intellectual and doctrinal investment in matters of procedure and statutory interpretation. The payoff of this comparison is to show how the domain of private law correlates to the role it plays in maintaining the legal systems’ legitimacy, and how analysis gravitates towards areas seen to stand on strong conceptual foundations.

The Arbitration and Conciliation Act 1996 is a comprehensive Act which has both the substantive as well as procedural law embedded within it. The process of arbitration initiates with one party invoking the arbitration clause and sending the notice of the same to the opposite party. The most important aspect of the arbitration lies in its very initiation i.e. appointment of the arbitrator. It is well known that the parties are supposed to appoint the arbitrator with mutual consensus. But in case of any dispute regarding the same, the aggrieved party requests the court to appoint the arbitrator. It is noteworthy that the process of appointment of the arbitrator has been evolving with time. This article provides an elaborate explanation of the evolution of the process of appointment of the arbitrator with time along with supported reportable case judgments in general. In particular, this paper analyses the nature of the function discharged by the court in appointing the arbitrator. Whether discharge of such function by the court amounts to administrative or judicial function. This article is a voyage in legal pathway which begins with the enactment of the 1996 Act, further dealing with the amended Act of 2015 and ends with the settled position of law in appointment of the arbitrator by the court in the present day. This article further critically analyses the positions of law over time in regard to appointment of the arbitrator by court.

The chapters contained in this yearbook have been composed by the participants of the second edition of the Forum on Procedural Law of the Court of Justice of the European Union held on Monday, 03 February 2020 at the Max Planck Institute Luxembourg for Procedural Law. The scope of the Forum was twofold. First, it set out to tackle cutting-edge procedural issues which arise in the Court's proceedings and case-law. Second, it provided an update on general procedural issues. The Forum took its name from the intention to have an open dialog among specialists of EU Law and Procedural Law and to foster comparison with other courts, be they domestic or international.

European Commission Study JUST/2014/RCON/PR/CIVI/0082 on National Civil Procedure Laws of 28 MS and the Enforcement of European Union Law led by Max Planck Institute for Procedural Law in Luxembourg: An evaluation study of national procedural laws and practices in terms of their impact on the free circulation of judgments and on the equivalence and effectiveness of the procedural protection of consumers under EU consumer law. The consumer protection strand of the study evaluates whether and to what extent national procedural laws and practices ensure the effective procedural protection of EU consumers. Both strands of the study investigate the legal and the practical situations in the civil procedural laws of the 28 EU Member States.

One of the explicit aims of the Directive on competition damages actions (the Directive) is to make the quantification of harm resulting from violations of European Union (EU) competition rules easier for damages claimants. One of the several ways envisioned by the Directive to achieve that aim is Article 17(3), according to which national competition authorities (NCAs) may assist national courts in quantifying the harm caused by anti-competitive conduct. In this paper, I focus on the transposition of Article 17(3) of the Directive in Sweden and make the argument that Sweden has not correctly implemented the Article in Swedish law. The topic is admittedly rather limited at first glance, but a discussion on the (non-)transposition of Article 17(3) of the Directive in Swedish law offers three significant insights which make pursuing it worthwhile. Firstly, it informs us about the nature and degree of interaction of the Swedish Competition Authority (SCA) with Swedish courts and tells us something about the relationship between the two. Secondly, it reveals some important procedural differences between private and public enforcement of EU competition rules in Sweden and exposes a certain tension between national rules of procedure, on the one hand, and the effective application of EU competition rules in Sweden, on the other. “Effectiveness” is a requirement that follows both from well-established case law of the Court of Justice of the EU (CJEU) and from the Directive itself. As a result, the second insight inevitably leads to a discussion on whether certain aspects of Swedish procedural law may be impeding the effective application of EU competition law. Thirdly, it explores different courses of action for Swedish courts and claimants that may find, like this author, that Article 17(3) has not been implemented correctly in Swedish law.

Statutes of limitation, otherwise called limitation laws, are legislative instruments or enactments that specify the timeframe within which an action or claim relating to a particular subject-matter may be brought to court. The implication of such enactments, subject to relevant exceptions, is that once an actionable wrong has occurred, the stipulated timeframe for an action to be instituted begins to run and if it lapses, without an action being instituted, the injured party would no longer be allowed to bring the action to court. The right of action would be deemed to have become “statute-barred.” Statutes of limitation are laws made by the legislative arm of government based on its constitutional powers. In Nigeria, there are two main tiers of government (Federal and State), with each having power to enact such laws. There appears, however, not to be clear rules defining the scope of application of the statutes of limitation enacted by the various legislative houses at Federal and State levels. Thus, there are scenarios of apparent conflict where it appears that more than one statute of limitation may govern a particular case. This scenario represents a challenge for litigants since the limitation periods prescribed for a given cause of action – say tort – are not always be the same in the respective statutes of limitation that may potentially apply. This article examines the scope of the constitutional powers of the two main tiers of government in Nigeria to legislate on the subject of limitation of actions, the intersection of laws made pursuant to those powers and how these may impact on the pursuit and defence of claims by litigants, especially when those claims cross state lines, border on Federal subjects or border on the administrative/executive actions of Federal authorities. We hammer that there is an uncomfortable greyness here which requires better clarity.

Spanish Abstract: Contiene una primera reflexion con la finalidad de “separar” el estudio del derecho procesal convencional del derecho procesal constitucional como una rama autonoma que cuenta con normas, principios, procedimientos, procesos, organos e historia propios. Sin dejar de precisar que es el derecho convencional es factible dividirlo en procesal y sustantivo, siendo este ultimo el que se ha “incrustado” en los textos para conformar el bloque de constitucionalidad. Se distinguen los medios de control constitucional federal y local (Estado de Chiapas) regulados en Mexico de los del Sistema Interamericano de Derechos Humanos (SIDH), con la intencion de diferenciar las instituciones, en cuanto a sus a las fuentes, objetivos y organismos. Si bien es cierto el impacto del SIDH en los regimenes internos de los Estados Parte no ha sido en forma uniforme, consecuencia “normal” en la vida del derecho, en cada pais se reflexiona sobre el alcance del derecho convencional en el ambito interno, que en esencia es una implantacion sana y urgente a la cultura del derecho creada en el devenir de los pueblos y aceptada por los organos tradicionales internos legitimados a traves del voto directo, pero ademas el derecho convencional sustantivo de derechos humanos mas que ser complementario es invasivo, al exigir adecuarse la interpretacion a los parametros de proteccion internacional. English Abstract: Contains a first reflection in order to "separate" the study of conventional procedural law constitutional procedural law as an autonomous branch that has rules, principles, procedures, processes, bodies and own history. While specifying that treaty law is feasible to divide it into procedural and substantive, the latter which has been "embedded" in the texts to form the constitutional law. Media federal and local judicial review (Chiapas) in Mexico regulated the Inter-American System of Human Rights (ISHR), intended to differentiate the institutions regarding their sources, goals and organisms are distinguished. While the impact of the ISHR in the internal regimes of the States Parties was not in uniform, "normal" consequence in the life of rights in each country reflects on the scope of treaty law at the domestic level, which in essence it is a healthy and urgent created the right culture in the future of the people and accepted by traditional internal organs legitimized through direct vote implantation, but also the substantive human rights treaty law to be complementary is more invasive, by requiring interpretation fit the parameters of international protection.

This paper examines the extent of the use and content of unwritten general principles of EU law in EU antitrust law. In particular, three unwritten general principles will be explored in more detail: effectiveness, proportionality and non-discrimination. The contribution will start by examining the explicit use of the general principle of effectiveness in antitrust law proceedings and rules related to its enforcement. The second part will explore the role of proportionality, both within the EU antitrust procedural law and the substantive assessment of an antitrust case. Finally, it will focus on the role of non-discrimination within the substantive assessment of EU antitrust cases. The paper shows that these principles are affirmed, expressly or implicitly, not only in procedural but equally in substantive antitrust law. Yet, their role and actual use varies significantly between antitrust procedure and the substantive assessment of a case. While these principles have a more explicit role in antitrust procedure, their role is less pronounced in the substantive assessment of antitrust cases. The assessment of these principles in the substantive case might also be different as the principles can be applied in a way that is open to economic reasoning and the EU Courts afford a high margin of discretion to the Commission in making complex economic assessments.

Delocalization of international commercial arbitration involve freeing and making an international commercial arbitration from the constraint of the lex loci arbitri that is procedural law of the place of arbitration thereby making it to float and free of national jurisdiction, irrespective of where the arbitration takes place. The delocalization theory is an attractive one from the perspective of both the arbitrators and the parties to arbitration. Mostly the place of arbitration is selected for convenience reasons and neutrality, impartiality, parties are not always willing to submit the arbitration to the procedural norms of that forum especially the rules that permit the intervention of the local court system. The failure to comply with the local procedural law could result in the final award being set aside by a local court which may jeopardize the chances of enforcement of arbitral awards elsewhere. This article examines the concept of delocalization and its practicability in International commercial arbitration particularly how it tends to liberalize National Arbitration law. The article discusses the jurisdictional trend in United Kingdom, India and France and how it has been able to minimize the reliance on the procedural laws of those jurisdictions. The article finds that delocalization of international commercial arbitration is yet to spread globally to many jurisdictions. It discovers that delocalization affected many arbitral awards which were subjected to local procedural laws and later led to annulment of the awards. The article concludes that delocalization of the arbitral process and the final award would mean that parties remain unaffected by unforeseen and undesired local procedural laws. To this effect, the parties will not face the risk that noncompliance with such laws would render their awards unenforceable. Finally, it will take the international commercial arbitration to a greater height from apron strings of national Laws.

The paper answers the question of whether investor-state dispute settlement (ISDS) discriminates against nationals. This issue was actually settled in 1926 in Hopkins v Mexico. The complaint that ISDS is discriminatory as a matter of principle has surfacedbefore the German constitutional court in the context of the ratification of the Comprehensive Economic and Trade Agreement between Canada and the European Union (CETA). It is predicated on the fact that only foreigners have legal standing, whereas nationals cannot take legal action against measures of their own government before an investment tribunal. As a corollary, foreign investors have an extra venue at their disposal to challenge statemeasures. The case is argued, in part, on the basis of the principle of equality before the law. It is undisputed that equality before the law includes procedural law. It entails that like cases are treated equally in terms of appellate review. The Federal Constitutional Court was able to leave the question of discrimination open in the applications for a preliminary injunction. It will have to take a stand, however, in the principal proceedings and examine the issue in light of the German constitution, for what is being impugned is the ratification act which is subject to national law. If the Court were to side with the applicants, it would deal a death blow not only to CETA in its present form, but to the multilateral investment court system promoted by the European Union and, in particular, Germany. The point made by the applicants in the CETA complaint is not only of importance to a German constitutional law context. If ISDS is per se discriminatory is a fundamental issue which requires answering before any reform steps in relation to ISDS are being addressed.

Every judicial system in the world must balance the values of accountability and independence. Both are important. Accountability helps keep the judiciary in check, while independence allows the judiciary to act as a check and to avoid undue influence. Yet these values are often in tension. The more connected courts are to other arms of government and to the political process, the more accountable but the less independent they tend to be. Likewise, every judicial system must balance transparency and privacy. These too are important values that are in tension with each other. Transparency—including public access of court records and participation in court proceedings—confers legitimacy to courts and facilitates accountability. Yet transparency comes at a cost to litigant privacy. How different sovereigns strike those balances depends in many ways upon the particular role of their courts in both politics and society. In the US, accountability, independence, transparency, and privacy are informed by American judicial structures, their processes, and their unique connection to politics. This US Report, prepared for the International Association of Procedural Law's World Congress in Japan in 2019, describes and assesses those features of the American civil justice system in the hope that the American approach for its judiciary may be an informative point of comparison or contrast for other countries.

Spanish Abstract: Dentro de los veintitres proyectos de ley reformatorios del Codigo Organico Inte-gral Penal (en adelante, COIP) planteados ante la Comision de Justicia de la Asam-blea Nacional, consta la propuesta que planea derogar el ultimo inciso del articulo 581. El inciso final del articulo en cuestion establece lo siguiente: “Para el ejercicio de la accion penal, por los delitos de peculado y enriquecimiento ilicito, constituye un presupuesto de procedibilidad que exista un informe previo sobre indicios de la responsabilidad penal emitido por la Contraloria General del Estado”1.El presente articulo busca dilucidar las principales repercusiones juridicas que supone la supre-sion del inciso final del articulo 581 del COIP. De igual manera, busca exponer las multiples incompatibilidades que presentan los delitos de enriquecimiento ilicito, peculado y el informe previo de contraloria como requisito de procedibilidad con los principios fundamentales del Derecho Penal Procesal. English Abstract: Within the 23 reform bills of the Organic Comprehensive Criminal Code (COIP) submitted to the Justice Committee of the National Assembly, there is a proposal that plans to eliminate the last paragraph of Article 581. The final paragraph of the article in question establishes the following: “[...] For the exercise of criminal action, for the crimes of embezzlement and illicit enrichment, a procedural presupposition is established that there is a prior report on indications of criminal responsibility issued by The Comptroller General of the State”. This article seeks to elucidate the main legal implications of the suppression of the final clause of Art. 581 of the COIP. Similarly, seeks to expose the multiple incompatibilities presented by the crimes of illicit enrichment, embezzlement and the previous report of the Government Accountability Office as a requirement of procedure with the fundamental principles of Criminal Procedural Law.

Labour law gives specification of rights, obligations and it regulates and tells the subjects on how they can conduct themselves on contractual terms and how they can enforce their rights. In other words, labour law sets a forum or an institution to enable the effective enforceability of both the employers’ and employees’ rights. Labour law has Substantive Labour Law and Procedural Law. Substantive law is that branch of labour law that prescribes the standards to be observed by both employers and employees. Specifically, substantive law deals with things like contracts of service and for services, termination of contract/employment, benefits e.t.c. These are provided for by the Employment and Labour Relations Act No. 6 of 2004, while Procedural Law is that branch of Labour Law that prescribes procedures to be followed in all labour matters. This is done by providing for institutions for implementation of the substantive standards, and enforcement of rights. This is provided for by the Labour Institutions Act No.7 of 2004 and the specific rules issued in 2007 GN Nos. 42, 64, 65, 66 and 67 of 2007. The main objective of labour law is to maintain the relationship between employers and employees by defining their rights and duties and regulating their conducts. And it is from this paper whereby such relationship is shown within the Act.

When are litigants' statistical estimates legally sufficient, given that courts use the preponderance of the evidence standard? We answer this question using Bayesian hypothesis testing and principles of federal procedural law, focusing on the common case of statistical estimation evidence from a normally distributed estimator. Our core result is that mathematical statistics and black-letter law combine to create a simple standard: statistical estimation evidence is legally sufficient when it fits the litigation position of the party relying on it. This means statistical estimation evidence is legally sufficient when the p-value is less than 0.5; equivalently, the preponderance standard is frequentist hypothesis testing with a significance level of just below 0.5. Finally, we show that conventional significance levels such as 0.05 require elevated standards of proof tantamount to clear-and-convincing or beyond-a-reasonable-doubt.

Judiciary represents the only way for settling all kinds of disputes in a modern state. The ability of judiciary to settle disputes in a reasonable and acceptable time has become endangered owing to the complication in ways of life and the increasing and overlapped disputes. Consequently, the problem of slow pace of litigation and that of inefficiency of judgments have arisen. These two phenomena are too dangerous and threaten justice. Further; they strip the right of litigation guaranteed by constitution of its value. The phenomenon of slow pace of litigation is considered one of the most important topics which researchers should care. This research has affirm belief that the right of litigants and enabling individuals to practice it and facilitating it is considered the first step of the way of social and economic establishment of all individuals in Egypt. The first supposition of justice necessitates and guarantees the right of citizens to resort to their usual judge to prevent the aggression on their rights, freedom and what can lead to getting their judicial equity within a reasonable period without unreasonable delay. It is not enough to mere state whether in constitution or law, the right of persons to resort to his judge in his suitable time. It is a must that the litigants should feel that justice is within reach and this cannot be attained except one can get his right in the least time and in the least expenses. Justice is not only conveying the right to its owner but also conveying it on two conditions: (1) in the nearest chance. (2) in the best way, namely, this must be done easily and without difficulties along with a period of time enough for preparing means of defense. The delay of litigation procedures for feeble reasons leads to losing the right of citizens and making those whose rights have been devoured resort to violence instead of using legal ways which can last for years. The delay of justice is not only a kind of aggression which can be more difficult and painful than losing the dispute or depriving the right of litigation but also denying it. So, it is said that: "Justice delayed, justice denied." In fact, the right of litigation loses every value and effect with the increase of the phenomenon of slow pace of litigation. It is a nonsense to state the right of litigation and meanwhile complicate the procedures followed by the litigant to reach his right in a way that prevent the individual to resort to his judge, according to what is stated in the explanatory note for the Egyptian Civil and Commercial Procedural Law No. 13 of 1968 and, thereby, gets lost in procedural mazes and superficial aspects. As a result his dispute lags in courts of jurisdiction and makes him divert from his lawsuit for being unable to exert more physical and psychological effort after going to the court again and again for reasonable or unreasonable delay and facing necessary or useless procedures and administrative complications which he cannot solve or find no outlet for them. So, he prefers safety and returns from the march of judiciary with a broken heart leaving behind his right to be devoured by procedures or for the interest of his opponent. It is truly said that "it is not by anyway a just affair that comes too late and if it happened, it is, then, nearer to aggression. Also, it is not a just case which puts burdens on the shoulders of that taking refuge to it or looking forward to it." It has been taken for granted that getting the judicial protection in the courts of justice regulated by the state takes a long time, suffering and perseverance which surpass all endurance. That is because disputes before the courts of state are characterized by slow pace of litigation, complication, evasion and delay rather than being an effective way of getting rights. That is because of the malpractice of the texts of law that guarantee the rights of the defense for the parties of litigation. It has become good for that who procrastinates to let his litigant resort to judiciary. It has been deeply stated in the minds of people that the best way to end one's right is to resort to the court. From this point, Alternative Dispute Resolution have become of great importance as they are characterized by the simplicity of procedures decreasing the pressure thrown on courts, lessening the burdens on judges and settling the disputes as quick as possible without any precautions as they depend on compromise. Further, these ways can be adapted to suit our judicial reality. Owing to these meanings and saving both the time and effort of the parties of administrative, commercial and civil disputes arising between the ministries and public judicial persons and between the employees of these ministries and the other legal personalities and what may result in lessening the burden thrown on the judges owing to the decreasing number of disputes heard in courts, the project of law prepared the entity which originates a new mechanism to conciliate between the disputed parties represented in committees headed by one of the present or previous judges or judicial panels. So, the legislator has taken the lead and originated alternative mechanisms other than judiciary which can give judgments in the disputes that may arise between the administration bodies including its officials and the other individuals and the judicial persons to conciliate between the two disputed parties before resorting to judiciary to make things easy for those having rights and to lessen the pressure on courts to make courts ready for big cases to avoid the slow pace of litigation and achieving a just and quick justice. As a result, the legislator originated a new mechanism to settle the disputes in which the ministries and the legal persons are a party of them via committees whose task is to conciliate between the two parties of the dispute which is a matter which achieve the interests of the citizens and contributes to decreasing the number of cases and disputes presented before judiciary bodies.

תקציר בעברית: דיני הראיות באים על רקע הדין המהותי ולצדו, ואמורים לאפשר לו להשיג את מטרותיו מצד אחד, וגם להציב גבולות לחלק מהמטרות ולהוסיף מטרות מצד אחר. הדין הראייתי וכמוהו הדין המהותי אינם יצורים עצמאיים, אלא מכשיר חברתי שמבקש לאפשר למערכת המשפט ולמדינה להשיג את מטרותיהן ולממש את ערכיהן. לפיכך ברור שהחיפוש אחר האמת אינו יכול להיות חזות הכל בשלב המשפט, ושקיימות מגמות אחרות, שלעתים נוגדות את האמת. מגמה בולטת כזו הנה ההגנה על ערכים. דיני הראיות מגנים עליהם באמצעות כללי כשרות להעיד, חסיונות וכמובן קבילות. ראיות מגוונות נפסלות, חלקן בגין חשש הוכחתי, שהראיה תסיט את בית המשפט מהאמת והוא לא יוכל להתמודד עמה, וחלקן בגין חשש ערכי, שמתקשר לאופן שבו הושגה הראיה. "פסילה ערכית" מתרחשת כשהראיה חזקה ומשכנעת, אלא שהאופן שבו הושגה אינו כדין ולפיכך מתנגש בערכיה של שיטת המשפט. רעיון הפסילה הערכית נותן תוקף למגבלות החוקיות הדיוניות המוטלות על המשטרה ועל הציבור כולו, בדחותו את האפשרות לקבל ראיות שהושגו שלא כחוק ולהתעלם מאופן השגתן. הרעיון שולח את המסר שהמטרה אינה מקדשת את האמצעים והכל כפופים בפני החוק, לרבות המשטרה. השגת ראיות שלא כדין בדרך להוכחת הדין הנה דיסוננס דמוקרטי, וקבלה שיפוטית של ראיות כאלו משקפת דיסוננס מצטבר ופגיעה נוספת בפרט. פסילת הראיות שולחת מסר הרתעתי חינוכי כנגד איסוף ראיות עתידי שלא כדין, מגנה על זכויות הפרט, מקדמת את הגינות ההליך ומאפשרת לגיטימציה מוסרית להכרעה השיפוטית.אף שרעיון הפסילה הערכית נראה הגיוני, משכנע וצודק, הוא מעורר מחלוקות חריפות, בין ליברליות לשמרנות, בין הגינות וזכויות לבין צדק ואמת. המאמר מראה שכללי הפסילה בישראל מגנים על ערכים באופן שאינו עקיב ומספקים לערכים הגנה שלעתים אקראית ולרוב הנה חלשה. ההחלטה אם לפסול ראיה על רקע ערכי אינה נעשית בהקשר שמאפשר לספק הגנה חזקה לערך הנפגע, משום שאינטרסים וערכים חזקים יותר מושכים לכיוון ההפוך. גם אם יחוש אי-נוחות ואפילו כעס על האופן שבו הושגה, בית המשפט יתקשה לפסול ראיה חיונית בתיק חשוב, לאור רצונו העז להגיע לאמת העובדתית שאותה ראיה חשפה בפניו. הדילמה שבפניו קשה, אולי בלתי-אפשרית: קבלת הראיה מאפשרת לו להגיע לאמת, תוך התעלמות מהדרך הפוגענית להפקת הראיה; ואילו פסילת הראיה נותנת תשובה הולמת שאינה משלימה עם הפוגענות האמורה, אך מונעת ממנו להגיע לאמת. כשהתיק שעל הפרק חשוב לבית המשפט יותר מאופן הפקת הראיה, הוא מוצא דרך לקבל את הראיה, באמצעות מנגנוני איזון או בעזרת תמרון פרשני, ומעדיף את השגת הצדק הקונקרטי שבתיק על הצדק שבהגנה הערכית. בית המשפט ראיות פוסל מפוקפקות רק במידה שאינן חיוניות להרשעה או כשהמחיר הערכי שבפסילה נמוך עד לא קיים מבחינתו.המאמר מציג מבט אקדמי ראשון מסוגו בישראל, על כללי הפסילה כמכלול ולא על אחד מהם כשלעצמו, במגמה להפיק תובנה רחבה. המאמר בוחן כל אחד מארבעת מסלולי הפסילה הקיימים בישראל ועומד על הדרך הארוכה לפסילת הראיה. במבט רוחבי המאמר מגלה אי-עקיבות שמראה שההגנה הערכית שמספקת פסילת ראיות חלקית ודלה. המאמר מבחין בין פסילה ערכית לבין קביעות שיפוטיות דומות אך שונות, ובין פסילה ערכית סמלית לפסילה ערכית מהותית, וגורס שהאחרונה היא יצור נדיר למדי שמופיע בעיקר בתיקים קלי-ערך, וזאת משום שבית המשפט אינו יכול או אינו מעוניין לספק הגנה ערטילאית לערכים מופשטים כשהדבר מצריך ממנו לשלם מחיר קונקרטי כבד. המאמר מציע כיוונים מגוונים לחיזוק ההגנה הערכית שהפסילה הערכית מתיימרת אך מתקשה לבצע, תוך בחינת אפשרויות מגוונות לשינוי הדין הדיוני, המהותי והראייתי, במגמה לשלול יכולת לבצע את הפגיעה הערכית שתפיק ראיות פסולות, ובמגמה לייצר לאוספי הראיות תמריצים שליליים להפקת ראיות שלא כדין ולפגוע במוטיבציה שלהם להפרת החוק. English Abstract: The law of evidence not only allows for the substantive law to accomplish its targets but also sets limits to some targets, as well as adding its own targets. Since the law is but a construct which helps the state and society fulfill their goals and values, then clearly the search for truth cannot dismiss other important tendencies. One prominent tendency is the protection of values. The law of evidence protects values by rules of competency, privileges and of course admissibility. Diverse evidence are excluded, some of which because of their low probative value and some because of the illegal manner in which they were gathered. The exclusionary rule validates legal and procedural impositions on the police and the public, refusing admission and rejecting the idea that means are marginal. Exclusion of evidence sends a deterring message against future violations of law in the process of evidence gathering. It protects human rights and allows for moral legitimacy to the jurisprudence. The article offers a gaze upon all aspects of the exclusionary rules in Israel, by examining each of the four routes of exclusion. Although the exclusionary rule seems logical and just, it is very hard to follow. The article suggests that it protects values and right in a weak and incoherent manner. The court may feel uncomfortable by the manner the evidence was gathered but will be reluctant to exclude key evidence in key trials, because of its desire to reach the truth and accomplish the targets of the substantive law. The article offers diverse legal options to protect values and rights, by wielding the procedural law, the substantive law and evidence law in order to deny the ability to break the law or set strong incentives to do so.

When controlling the administration, administrative courts check the administrative decision and, in case of unlawfulness, they can annul the decision. This process takes time, and is often inefficient and unsatisfactory. Seeking solutions to the problems this mechanism brings about, the legislator introduced the administrative loop: instead of annulling an irregular decision, the administration gets time to repair the decision. For this reparation, the court provides the administration with instructions. This administrative loop is one of the (new) instruments in the toolbox of the administrative court to achieve final (and faster) dispute settlement, which entered administrative procedural law as of 2008. The Belgian Constitutional Court’s ruling may not have a direct impact on Dutch administrative law, but they gave thought for food and resulted in asking some major questions as regards fundamental procedural rights. For instance, a guarantee lacks for parties to have their oral say on the application of the loop. And third parties, not yet involved in the procedure, are under certain circumstances possibly deprived from access to court, especially if the reparation after the loop has been applied, did not take the form of an administrative decision. Furthermore, courts have to stay aware of the separation of powers and hence their impartiality. In case an administrative court gives the administration too far-reaching instructions on how to repair an administrative decision, the risk arises the citizens fear (justified) partiality on the part of the court.

For a long time, a common rule of good legislative technique has been to keep preliminary texts short so that readers focus on the normative provisions. However, one of the most striking features of recent EU regulations on private international law (PIL) is how long their preambles are. Why have they become so lengthy? What does this tell us about their nature and function? It is commonly asserted that preambles only have an interpretative value, and not even a privileged one: this is a widespread view also shared by the CJEU. Linked to it, evidence shows that textbooks on legal instruments devote just a cursory glimpse to preambles. We respectfully disagree with such habits and opinions: in the light of the current EU PIL regulations the debate about the value of preambles cannot be deemed settled. It is here submitted that their demotion to being mere interpretative tools is an oversimplification, and deserves to be revisited. In our view, preambles nowadays comprise plainly interpretative parts together with parts drafted in a way that suggests a somewhat different role. In other words, the possibility of a variety of values and functions - whatever opinion it may deserve - should not be automatically discarded.

The operation, content and mere existence of limitation periods have been subject to considerable debate. These laws (‘Limitation Acts’) are implemented through state legislation and thus differ in their application between states. Progressive changes in society have revealed flaws in the Limitations Acts; courts recognising a cause of action while coordinate courts in other states considering it barred and increased interstate mobility resulting in forum shopping. Statutory and judicial reconceptualisation of these Limitation Acts in regards to substantive and procedural law had been implemented to address this issue. Increases in faith in medical and psychiatric sciences and committee recommendations have also required Limitation Acts to accommodate these issues in a variety of ways. Some of these accommodations have resulted in abolishment of limitation periods. However, total abolishment of Limitation Acts altogether may still require discussion and consideration.

Current criminal procedural law against the phenomenon of terrorism was originally promulgated by Organic Law 4/1988, May 25th, reforming Rules of Criminal Procedure. This law implied the consolidation, sui generis, of exceptional measures that affect fundamental rights and developed the provisions of article 55.2 of the Spanish Constitution. In other words, it constituted the basic status of people detained because of terrorism. This part of the Rules of Criminal Procedure against terrorism, and others, should be understood under the circumstances they were promulgated and applied.

This short essay was prepared as the Italian Report to the 2017 Conference of the International Association of Procedural Law (IAPL 2017 China) 'On Judicial Management from Comparative Perspective' (8 - 10 November, 2017, Tianjin), General (Foreign) Reporter: John Sorabji, University College London, England.

One of the main purposes of private international law is the resolution of conflicts of jurisdiction in civil matters. In the European Union (EU), this goal is pursued by an articulate body of Regulations, forming part of what is usually labelled as ‘European procedural law’ or ‘European civil procedure’. In criminal law, by contrast, no such system exists: although Eurojust aims at resolving conflicts of jurisdiction by facilitating the identification of the jurisdiction that should prosecute cross-border crimes, no hard-law instrument regulates this matter in a binding fashion.Having noted this legislative gap, in January 2013 the European Law Institute accepted a project proposal dealing with the prevention and settlement of conflicts of jurisdiction in criminal law. One of the tasks of the Working Group focusing on this project was a comparison between private international law and criminal matters, so as to assess whether and to what extent the solutions adopted in the former field could be successfully transposed to the latter. This Chapter presents some reflections of the topic, triggered by the Working Group’s meetings and discussions.The Chapter proceeds in three parts. The first part preliminarily highlights some fundamental differences between civil and criminal justice, which must be taken into account. As the Chapter will show, the differences at hand constrain, to a certain extent, the feasibility of a cross-sectoral comparative exercise, but they by no means make it impossible. The second part looks at private international law in general and argues that some of its basic principles should be adopted in the field of conflicts of jurisdiction in criminal law too. Finally, the third part draws some specific lessons from European civil procedure in particular.

The World Anti-Doping Agency (WADA) and the Court of Arbitration for Sport (CAS) are both foundations under Swiss private law and have their registered seat is in Lausanne, Switzerland. In addition to WADA and CAS, the majority of international sports federations are equally based in Switzerland. Although the adoption of the WADC in 2003 brought about a harmonization of the different anti-doping regulations and the creation of an international regime for anti-doping rule violations, Swiss law continues to play a major role in the adjudication of doping-related procedures before the CAS. The importance of Swiss law is undoubtedly more evident when it comes to the procedural aspects, since the CAS is based in Switzerland and has to comply with the more general legal framework governing international arbitral institutions seated in Switzerland. When it comes to the law applicable to the merits, Swiss law applies “subsidiarily” in all cases where the federation whose body issued the appealed decision is seated in Switzerland. This paper aims to determine the relevance of Swiss law in both the procedure and the merits of doping-related cases, through some examples at the different stages of the anti-doping proceedings before the CAS and before the Swiss Federal Tribunal (SFT).

The impact of European Union law on the national procedural rules applicable in civil matters was initially very limited despite the fact that in recent years civil judicial cooperation has become a constantly evolving daily reality within an enlarged market which has called for greater protection for citizens of the Union and not only. On the other hand Union Institutions in recent years and especially after the Treaty of Lisbon have sought as we have seen both through solid jurisprudence and through continuous, precise and concrete interventions by the Community legislator to give a new context of harmonization and evolution in the field of European civil procedural law and as a consequence a necessary impact in the national context of Member States.

Since 1831, Indian nations have been viewed as Domestic Dependent Nations located within the geographical boundaries of the United States. Although Chief Justice John Marshall acknowledged that Indian nations had a certain amount of sovereignty, the exact extent of such sovereignty as well as the place of tribes within the federal system has remained ill-defined. This Article examines what has been the role of the Supreme Court in integrating Indian nations as the third Sovereign within our federalist system. The Article accomplishes this task by examining the Court’s Indian law record in the last 30 years. The comprehensive survey of Indian law decisions indicates that the Court has had difficulties upholding the federal policy of respecting tribal sovereignty and encouraging tribal self-government. After categorizing the cases between victories and losses, the Article divides the cases into four categories: Federal common law, statutory interpretation, constitutional law, and procedural law. The cases are then further divided into four general areas: 1. Tribal Sovereign/Political rights, 2. Economic Rights (treaty/property rights), 3. Rights derived from the trust relationship, and 4. Cultural/Religious rights. The Article next focuses on the interaction between the Court and Congress concerning the incorporation of tribes as the third sovereign within the federalist system. This Part first evaluates Congress’s response to Supreme Court cases and then looks at the Court’s response to congressional legislation. The Article ends by arguing that through its disproportionate use of federal common law in its Indian law decisions, the Court has not attempted to reach a consensus with Congress about the place of Indian nations within our federalism. Instead, it has aimed to establish what the Court perceives should be the proper equilibrium between tribal interests on one hand and the non-Indian/state interests on the other.

תקציר בעברית: שחרור חסמים בסדר הדין הפלילי: צמצום הכוח המנהלי והגברת הביקורת השיפוטית – תקציר בסדר הדין הפלילי קיימים חסמים: מצבים שבהם החוק אינו מקנה אפשרות לבקרה שיפוטית מכרעת על סוגיה חשובה. חלק מהחסמים הנם כלפי מתלוננים וקרבנות, שמנועים כמעט לגמרי להביא לביקורת שיפוטית פלילית בהכרעות מפתח, כמו הסירוב המשטרתי לפתוח בחקירה, הסירוב התביעתי להעמיד לדין, העמדה לדין באישום קל מדי והגעה להסדר טיעון מקל מדי. חסמים אחרים הנם כלפי חשודים ונאשמים, שמנועים כמעט לגמרי להביא לביקורת שיפוטית פלילית בהכרעות חשובות או לגבי עוול שנעשה, כמו במצב שהפרט סבל מפרקטיקה משטרתית פוגענית שלא הובילה לדיון שיפוטי מאוחר, כמו סגירת תיק בעילה מכתימת-שם וכמו עצם ההעמדה לדין. החסמים השונים מותירים באופן טיפוסי את הנפגע מול שוקת פלילית שבורה, ללא מסלול חוקי שיאפשר לו להילחם בפגיעה בזכויות ובאינטרסים שלהם, בהיעדר פרוצדורה מתאימה בחוק ובמקרים מסוימים בהיעדר אפשרות להגיש ערעור מידי על הכרעה קריטית. בהיעדר תרופה בחוק, יכולים הנפגעים להשלים עם הפגיעה בהם, לנסות ולהידבר עם בעל הכוח, או לתקוף את ההחלטה בתקיפה מנהלית. בהינתן סוגיה דיונית פלילית ובהיעדר מסגרת דיונית פלילית, בג"ץ מהווה פתרון פוטנציאלי יחיד. אולם זהו פתרון בעייתי, יקר, חלש ומוגבל; בג"ץ עמוס בתיקים ואינו מעוניין בעוד עבודה, מצד אחד, והמשפט המנהלי אינו כלי מתאים וחד מספיק עבור הסוגיות שעל הפרק. המאמר גורס שחרף החיסכון בזמן ומשאבים, מדובר בבעיה שטעונה שינוי, המביאה להתפתחות איטית ודלה של המשפט, לפגיעות בפרט ובאינטרס הציבורי, לחוסר התאמה בין שפת המשפט לשפת הסוגיה שבמחלוקת, להיעדר בקרה להכרעות שמתקבלות בידי בעלי כוח גדול במיוחד ואולי אף לניצול לרעה של בג"ץ בידי עותרים המעוניינים להפיק בעיקר רווח פוליטי או תקשורתי. המאמר מציע לפתור לשקול לייצר מסלולים דיוניים פליליים מתאימים, ואילו במקרים שהדבר אינו מתאפשר או שהמחיר גבוה מדי – לייצר מנגנוני בקרה חזקים יותר מאלו הקיימים כיום. כך ניתן להגשים טוב יותר את יעדי המשפט הפלילי, להגן על זכויות ולממש אינטרסים וערכים חשובים. English Abstract: Lifting Criminal Procedure Barriers: Decreasing Administrative Power and Reinforcing Judicial ReviewThe criminal procedural law includes barriers: scenarios in which the law does not offer a path to judicial review of a crucial conflict. These barriers prevent victims, suspects and defendants from appealing to a criminal court in order to repeal an offensive administrative decision, and leave them without a legal path to fight for their rights and interests. Left without a legal remedy, the person who suffers by an administrative decision within the criminal law can come to terms with the decision, try to convince the authority to turn its decision or file an administrative petition to the High Justice Court. The HJC provides a limited, expensive and weak solution, since this instance it is over flooded with petitions and because administrative law is ill-suited for the questions dealt by criminal law. The article maintains that although this reality saves time and resources, it also sets the law back, allowing violations of rights and hindering of public interests. It also leaves powerful forces out of any meaningful review. The article suggests creating appropriate legal procedures, or at least more meaningful review mechanisms to protect both human rights and public interest.

The years 1848 and 1938 were landmark years in the history of American procedural law. The first marked the advent of code pleading, and the second introduced the Federal Rules of Civil Procedure. Both developments were a product of reform movements that addressed what the reformers believed to be a procedural crisis generated by the inefficacy of the procedural system under attack. The goal was to create a system of procedure that was both efficient and instrumental to the vindication of substantive rights. In part, each crisis reflected a tension between formalism — the need for rules — and pragmatism — the need for flexibility. Hence, the early codes offered a code-based system that was structured but significantly less so than the common law system it replaced. The Federal Rules aimed to do the same in response to the codes. The difficulty facing both sets of reformers was that their respective tasks of reform required the imposition of rules and at the same time required a pragmatic but principled approach to applying those rules. It seems though that a rule-based system eventually drifts toward the rules and away from pragmatism. Thus, at some point the rules of code pleading came to dominate the instrumental goals of that system. The same appears to be happening with the law of federal courts, including both the Federal Rules and doctrinal procedural law beyond those rules. I believe we are now in the midst of a procedural crisis, but it is not one that requires a new set of rules. Rather it is one that requires a readjustment of the way we think about the current rules and doctrines. This article invites a rethinking of the law of federal courts, including both the rules and the doctrines. It invites a return to the principles that originally animated the Federal Rules, and to the idea of natural lawyering and judging that inspired Charles Clark. The article builds upon the idea of a convenient litigation unit as central to the dispute resolution mission of federal courts, that is, saying what the law is, adhering to the rule of law, and enforcing the checks and balances of our constitutional system.

International organizations are legal communities in a threefold sense: They are created by law, they use law as a means of governance, and they should be governed by the rule of law. Accordingly, international law constitutes, enables, and constrains international organizations. The paper shows that (with some simplification) legal scholarship until the 1990s was primarily concerned with the constituting and enabling function of the law (thus securing the effectiveness of international organizations), while the more recent legal concern is the constraining function of the law (thus improving the accountability of international organizations). In the procedural law of organizations, a tryptichon of accountability procedures has been built: transparency, participation, and access to justice.