Why is the Iura Novit Curia Principle not Applied Yet in English Law?

Global Jurist ◽  
2017 ◽  
Vol 17 (3) ◽  
Author(s):  
Cesare Cavallini
Keyword(s):  
Regulatory Framework ◽  
Comparative Approach ◽  
Civil Justice ◽  
Global Context ◽  
Shared Space ◽  
English Law ◽  
The Law ◽  
The Eu

AbstractThis article adopts a comparative approach to map a global context for the fundamentals of civil justice. In view of the acknowledged incomplete role of the EU regulatory framework in this respect, the article aims to discuss whether it would be useful and how it would be possible to find a shared space for civil justice, starting from the role of the judge to «find the law» as well as the notorious and universally recognised principle of «

Part I The General Context, 5 The Lawmaker, the Regulator, and Current Preoccupations

2018 ◽  
Author(s):  
Mccormick Roger ◽  
Stears Chris
Keyword(s):  
Legal System ◽  
Regulatory Framework ◽  
General Context ◽  
Risk Profiles ◽  
Legal Risk ◽  
Constant Change ◽  
English Law ◽  
The Law ◽  
Rules And Standards

This chapter considers the role of lawmakers and regulators in managing legal risk. It argues that English law must be able to cope with the changing nature of market transactions as well as ensure that the regulatory framework keeps pace with changing risk profiles. Steps must be taken to prevent a mismatch between the expectation of the law and modern commercial reality. The lawmaker’s job is never finished or complete since the sections of society principally affected by what we loosely call ‘financial law’ are in a state of virtually constant change and so the demands of the legal system are also constantly changing. Regulators also develop enforceable rules and standards despite the probability that any financial misdemeanour by a regulated body will be blamed on the regulator.

scholarly journals The role of the regulatory framework for innovation activities: the EU ETS and the German paper industry

2011 ◽  
Vol 11 (3/4) ◽  
pp. 250 ◽  
Author(s):  
Karoline S. Rogge ◽  
Joachim Schleich ◽  
Philipp Haussmann ◽  
Annette Roser ◽  
Felix Reitze
Keyword(s):  
Paper Industry ◽  
Regulatory Framework ◽  
Eu Ets ◽  
Innovation Activities ◽  
The Eu

10 London

2014 ◽  
Author(s):  
Jagusch Stephen ◽  
Triantafilou Epaminontas E
Keyword(s):  
Legal System ◽  
Legal Framework ◽  
Court Decisions ◽  
England And Wales ◽  
Recognition And Enforcement ◽  
English Law ◽  
The Law ◽  
Key Aspects ◽  
Laws And Regulations

This chapter summarizes the key aspects of the English legal system with respect to the role of courts in arbitrations seated in England and Wales. First, it highlights the key provisions of relevant English legislation, mainly of the English Arbitration Act of 1996 and the principal court decisions arising under that legislation. Second, it describes the manner in which English law as the law of the seat affects the role of English courts in the course of three discrete stages: before the award, after the award, and during recognition and enforcement. In the process and where necessary, it addresses and ultimately rejects recently articulated concerns questioning the supremacy of England and Wales as an arbitration seat. The chapter concludes that England and Wales possesses a comprehensive and clearly articulated legal framework governing arbitration, and a sophisticated, impartial judiciary with ample experience in complex arbitral disputes and the collateral issues they raise under both English law and foreign laws and regulations. The jurisdiction is distinctly arbitration-friendly, with a keen understanding of the benefits arbitration aims to confer on parties, and the policy considerations such benefits entail.

scholarly journals Implementation of the EU Horizontal Policies in Ukraine in the Framework of the EU-Ukraine Association Agreement

2020 ◽  
Vol 2020 (57) ◽  
pp. 169-187
Author(s):  
Oksana Krayevska
Keyword(s):  
Policy Implementation ◽  
Association Agreement ◽  
Bilateral Cooperation ◽  
The Law ◽  
Common Policies ◽  
The Eu

The EU Horizontal Policies and their impact on the relations with third countries have been investigated based on the EU-Ukraine Association Agreement. The essence and role of the EU common policies and the place of horizontal policies within their structure are analysed here. Special attention is paid to the EU-Ukraine cooperation in the framework of the Association Agreement and responsibilities of Ukraine in the process of the law approximation and policy implementation followed by analyses of the achievements, challenges, and further perspectives for their bilateral cooperation in the conclusion.

scholarly journals EU regulations on telecommunications: The role of subsidiarity and mediation

First Monday ◽  
2010 ◽  
Author(s):  
Panayiota Tsatsou
Keyword(s):  
European Commission ◽  
Information Society ◽  
Shared Vision ◽  
Regulatory Framework ◽  
Critical Examination ◽  
Eu Regulation ◽  
Telecommunications Regulation ◽  
The Past ◽  
The Eu

This article provides a critical examination of telecommunications regulation in the EU and argues for the need for change along the lines of subsidiarity and mediation. This discussion is particularly timely, as the European Commission is working on a new telecommunications regulatory framework, with the lessons and failures of the past appearing more critical than ever. In this context, the article points to the debate between national heterogeneity and shared vision in the European Information Society and it proposes a shift of the culture and procedures dominating the formal EU regulation. It brings to the fore the potential for the tension between national particularities and EU regulation to be resolved by applying subsidiarity along with existing regulatory tools and mediation via the enforcement of mediating networks and the establishment of institutions that increase the accountability of EU regulation on telecommunications.

scholarly journals Position Replacement By Inheritee Who Refuses A Heritage According To Heir Civil Law Dan Islamic Heir Law

2018 ◽  
Vol 2 (2) ◽  
pp. 153-165
Author(s):  
Gibtha Wilda Permatasari ◽  
Yuliati Yuliati ◽  
Herman Suryokumoro
Keyword(s):  
Research Method ◽  
Islamic Law ◽  
Civil Law ◽  
Legal Issues ◽  
Comparative Approach ◽  
Legal Certainty ◽  
Inheritance Law ◽  
Research Journal ◽  
The Law

This research journal discusses legal issues relating to the substitution of places made by the heirs who previously rejected the inheritance which falls to him by comparison of the perspectives of civil inheritance law and Islamic inheritance law. Pursuant to Article 848 and Article 1060 of the Civil Code on the replacement of the place by the heirs who reject the inheritance and the notary's role as a general official in providing legal certainty to prevent the issue of inheritance according to the law of civil inheritance and the Islamic inheritance law. The purpose of this research is to know and to analyze whether or not the heirs who have rejected inheritance replace other heirs as well as to know the role of notary in giving legal certainty to prevent problems in the civil inheritance law and Islamic inheritance law. The research method used by the writer is the statue approach and comparative approach. Heirs who reject inheritance under civil law of inheritance cannot change place (plaatsvervulling) because the requirement of replacement of place according to the law of civil inheritance is derived from families of blood in the same degree and not reject the inheritance. The replacement of places in Islamic inheritance law is known as mawali however, Islamic law does not recognize the denial of inheritance only known in the law of civil inheritance.

There is little usage of what may be described as the forensic skill of the English judge. The major part of the report concerns summaries of the arguments put forward by both parties, the Advocate General, other interested Member States, and the governments of affected Member States. Given the detail of the summarised arguments, and the range of arguments presented, it is interesting to note that it is acceptable for the Court to dismiss arguments without reasons. Theoretically, of course, an English judge could do the same, but the entrenched method of reasoning by analogy based on precedent makes such a course of action unlikely. 5.7 SUMMARY This chapter has attempted to give an outline description of the main areas where English law needs to be read and understood in its European dimension. These areas are the law relating to human rights, and the EU and its law making powers (EC law). The chapter began with a basic introduction to the idea of treaties in general as the main method of the British government making political agreements— agreements that are usually operative at the level of international law. The chapter then explained the ways in which the law relating to human rights and the legal aspects of the EU have become part of English law.

2012 ◽  
pp. 186-186
Keyword(s):  
Human Rights ◽  
Major Part ◽  
Legal Aspects ◽  
Member States ◽  
Course Of Action ◽  
English Law ◽  
The Law ◽  
Ec Law ◽  
Reasoning By Analogy ◽  
The Eu

9 SUMMARY This chapter has been concerned with introducing, in some depth, common law/ case law, the second major source of English legal rules discussed in this book. The role of the judiciary in the development of English law has become apparent as the chapter has progressed. This chapter has also indicated the central importance of a careful dissection of the law reports to ensure that the correct aspects of the case are correctly summarised for a case note and further use. Taken together with Chapter 3, the foundations of an indispensable ‘how to’ approach have been laid. It is now appropriate in the next chapter to place this foundation in its European context looking at the law relating to European human rights and fundamental freedoms and the law relating to the European Community. In Chapter 9, three sources of English law (legislation, case law and European Community law) are further developed by being brought together in a case study. 4.10 FURTHER READING As already mentioned in Chapter 3, if you are a law student the ground covered by this chapter will also be covered in English legal system courses and constitutional or public law courses. Coverage of reading cases can be found in the following excellent texts relating to both the theoretical and practical aspects of legal method. • Sychin, C, Legal Method, 1999, London: Sweet & Maxwell, Chapters 7 and 8. • Twining, W and Miers, D, How To Do Things With Rules, 4th edn, 1999, London: Butterworths, Chapters 7 and 8.

2012 ◽  
pp. 126-126
Keyword(s):  
European Community ◽  
Case Law ◽  
Legal Rules ◽  
Legal Method ◽  
English Law ◽  
The Law ◽  
Law Student ◽  
Law Reports

scholarly journals JUDICIAL SCRUTINY OF MERGER DECISIONS IN THE EU, UK AND GERMANY

2011 ◽  
Vol 60 (1) ◽  
pp. 93-124 ◽  
Author(s):  
Michael Harker ◽  
Sebastian Peyer ◽  
Kathryn Wright
Keyword(s):  
Agency Theory ◽  
Judicial Review ◽  
Comparative Approach ◽  
Merger Policy ◽  
Apparent Increase ◽  
Law And Policy ◽  
Key Issues ◽  
Judicial Scrutiny ◽  
The Eu

AbstractThe appropriate role of the courts in controlling the discretion of merger authorities has become one of the key issues in European merger law and policy in recent years. This article investigates judicial review of merger decisions, taking a comparative approach by examining cases from the EU, UK and Germany. We observe an apparent increase in the willingness of the EU and UK courts to scrutinize merger decisions, and a long-standing tradition of close scrutiny in Germany. In respect of the EU and UK, we consider agency theory offers a convincing explanation—that increased scrutiny is explained by the need to enhance the credibility of merger policy. In Germany, the constitutional basis of judicial review differs significantly, and the relatively close scrutiny exercised by the court is better explained by the very different constitutional context.

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