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Perspectives on Declaratory Relief by Kanaga Dharmananda,Anthony Papamatheos Pdf
In Sankey v Whitlam (1978) 142 CLR 1 at 25, Gibbs ACJ remarked that: "The power to make declaratory orders has proved to be a valuable addition to the armoury of the law."Declaratory proceedings are practical and remain one of the most popular remedies in both civil, commercial and public law litigation. In the past few years, the declaration was the remedy sought in a number of high profile cases, including the constitutional challenge to the Workchoices legislation, the AWB privilege claims, the Channel 7 litigation and as to the status of certain proofs of debt in the Sons of Gwalia insolvency. But despite its regular and broad practical application, no Australian work on the subject has been published since 1984.This book is a collection of papers by eminent Australian jurists on the law of, and major issues involved in obtaining, declaratory relief. They address major questions about declaratory relief, including the jurisdiction and power to award the remedy, its development, historical origins and the discretion vested in a court hearing an action for declaratory relief. It also addresses practical aspects such as the form or terms of the declaration to be ordered and provides some precedents.All royalties from this work are being directed towards the Indigenous Legal Scholarship program at the University of Western Australia, Law School.
The Legal, Real and Converged Interest in Declaratory Relief by Beata Gessel-Kalinowska vel Kalisz Pdf
Worldwide, in both litigation and arbitration, the term ‘declaration’ refers to both what is sought by the parties and what is granted by the judicial authority. In the latter case, it can be construed as a remedy known as ‘declaratory relief’, where the plaintiff seeks an authoritative judicial statement of the legal relationship. Although of enormous significance in dispute resolution, declaratory relief has not been analysed in detail until this deeply informed study. The book’s main focus is on declaratory relief relating to disputes resolved within the framework of international commercial arbitration and litigation. Focusing on the notion of ‘legal interest’ – which the author views as a serious limitation of access to justice – the book sets out to redefine the term in order to respond to the needs of modern legal dealing. Issues and topics such as the following are thoroughly considered: the concept of legal interest as a prerequisite to granting a declaration; circumstances under which relief based on a declaratory judgment may be granted; determination of a plaintiff’s ‘legal interest’ in having a legal relationship established by a judicial ruling; powers of the court or tribunal in various jurisdictions, emphasizing the contrast between ‘legal interest’ in Germanic law and ‘real interest’ in English law; combining a declaration with a coercive measure; role of the arbitration agreement and applicable arbitration law; and how arbitration can neutralize the strict notion of legal interest (‘converged interest’). Case law, including numerous previously unpublished arbitration awards, is fully taken into account. The final chapter elaborates a new interpretation of the declaratory relief concept, encompassing civil substantive and procedural law enriched by theory of justice, comparative analysis and statistical analysis. Apart from the foregoing analysis by the Author, the publication is supplemented with an annex, which presents expert reports by local practitioners on the relevant legal characteristics in Germanic civil law jurisdictions (Austria, Germany, Poland and Switzerland). Given that recent legal scholarship has been increasingly insistent that judicial practice should evolve towards broader use of declarations, particularly where interpretation of contractual stipulations is necessary, this book holds a crucial place in current theory and practice in both litigation and arbitration contexts. With its challenging redefinition of the legal interest concept, it promises to play an important role in formulation of relief in dispute resolution, particularly in international commercial arbitration. Lawyers and arbitrators will benefit from awareness of how other tribunals decide and how awards can be formulated, and arbitration institutions as well as academics in the field will welcome this deeply informative analysis.
Civil Procedure of the Trial Court in Historical Perspective by Robert Wyness Millar Pdf
Reprint of a title from the Judicial Administration Series published by the National Conference of Judicial Councils. Originally published: New York: Published by the Law Center of New York University for the National Conference of Judicial Councils, 1952. xvi, 534 pp. Written near the end of Millar's career, the present study is a brilliant summary of his life's work. It discusses antecedents of the Anglo-American system, the evolution of procedure and American and English civil procedure in the nineteenth century. Other chapters discuss the development of specific areas, such as introduction of the cause, mode of trial and voluntary dismissal. "In a society which so often confuses quantity with quality - or at least tends to regard quantity as a necessary ingredient of quality - it is not surprising that American legal texts labeled "great" have generally been multi-volumed ones. While the number of volumes certainly does not detract from the worth of a Williston on Contracts or a Wigmore on Evidence, their sheer size has made them more easily recognizable, in our society, as classics. On the other hand, the single volume American law books receiving the label of greatness would make a sparse list indeed. To this elite list must now be added Professor Millar's Civil Procedure of the Trial Court in Historical Perspective." --Philip P. Kurland, Harvard Law Review 66 (1952-1953) 1542 Robert Wyness Millar [1876-1959], a professor at Northwestern University Law School, was a leading authority on civil procedure and its history. Miller 1937 Millar was the author of The Old Regime and the New in Civil Procedure (1937) and, with co-author Arthur Engelmann, A History of Continental Civil Procedure (1927).
Understanding Administrative Law in the Common Law World by Paul Daly Pdf
Around the common law world, the law of judicial review of administrative action has changed dramatically in recent decades, accelerating a centuries-long process of incremental evolution. This book offers a fresh framework for understanding the core features of contemporary administrative law. Through comparative analysis of case law from Australia, Canada, England, Ireland, and New Zealand, the author develops an interpretive approach by reference to four values: individual self-realisation, good administration, electoral legitimacy, and decisional autonomy. The interaction of this plurality of values explains the structure of the vast field of judicial review of administrative action: institutional structures, procedural fairness, substantive review, remedies, restrictions on remedies, and the scope of judicial review. Addressing this wide array of subjects in detail, the book demonstrates how a pluralist approach, with the values being employed in a complementary and balanced fashion, can enhance our understanding of administrative law. Furthermore, such an approach can guide the future development of the law of judicial review of administrative action, a point illustrated by a careful analysis of the unsettled doctrinal area of legitimate expectation. The book closes by arguing that the author's values-based, pluralist framework supports the legitimacy of contemporary administrative law which, although sometimes called into question, facilitates the flourishing of individuals, of public administration, and of the liberal democratic system.
Equity and Trusts in Australia by Michael Bryan,Vicki Vann,Susan Barkehall Thomas Pdf
Equity and Trusts in Australia, second edition provides undergraduate and Juris Doctor students with an accessible introduction to equity and trust law.
Equity and Trusts in Australia by Michael Bryan,Vicki Vann,Susan Barkehall Thomas Pdf
Equity and Trusts in Australia offers an accessible introduction to the principles of Australian equity and trusts law for students, linking key doctrines to their wider relationship with the law. The text covers foundational topics of equity and trusts law, including the nature of equity, fiduciary relationships and trust structures. This edition has been revised to include recent landmark decisions and a new chapter on termination and variation of trusts. Each chapter concludes with a guide to the online resources, which encourage students to extend their knowledge of the content through further reading, practice problems and discussion topics. Written by a team of experienced authors, Equity and Trusts in Australia is an ideal text for students undertaking this area of study for the first time. A Sourcebook on Equity and Trusts in Australia is also available and provides cases and primary legal materials to accompany Equity and Trusts in Australia.
Interdisciplinary Feminist Perspectives on Crimes of Clerical Child Sexual Abuse by Kate Gleeson,Timothy Willem Jones Pdf
In recent years the sexual abuse of children in religious institutions has gripped the Western world, as churches, governments and civil society attempt to come to terms with the magnitude of widespread historical abuses. Questions continue to be asked about why it is that perpetrators were able to offend repeatedly and with impunity; what is it about institutions that facilitate or foster abuse; and why have survivors of abuse often been treated inadequately by diverse national and international justice and political systems throughout the last century? This volume makes a significant contribution to international understandings of the vexed and sensitive ‘wicked problem’ of child sexual abuse in religious institutions. The chapters in this volume are written from a range of feminist disciplinary responses, including law, criminology, anthropology and history. Together, they provide important historical context for the current social and political interest in clerical sex crimes. They examine political and legal avenues for redress for survivors of these crimes and critically examine the ways in which church cultures position clergy and clergy offenders in relation to victims. The chapters originally published in a special issue of the Australian Feminist Law Journal.
The proliferation of economic agents with market power, especially those operating in the digital economy and which add unprecedented dynamic and complexity to it, has sparked heated discussions among academics, professionals, and competition authorities around the world regarding the effects of their actions on the market and consumers. Unlike classic cartels – a conduct that has been treated as per se unlawful in Brazil, regardless of the production of effects under Brazilian competition law – unilateral conduct falls into a gray area, encompassing different practices with different effects on the market. In this sense, examples of unilateral conduct that may be considered anticompetitive are numerous, both under old and new labels: predatory pricing, abusive pricing, resale price maintenance, imposition of exclusivities, parity clauses, price discrimination, discrimination of commercial conditions (self-preferencing), price squeeze, refusal to deal, among others. The competition analysis of such conduct – which may occur in traditional "brick and mortar" markets as well as in digital environments involving various platforms and arrangements like blockchain – for the purpose of a decision by the authority on whether they constitute anticompetitive practices or not, involves a highly complex analysis of various factors. The analysis must consider the presence of dominant positions, real or potential detrimental effects on competition, efficiencies, justifications, economic rationale for the conduct, and, for some schools of thought, a weighing of anticompetitive effects and efficiencies. Due to the complexity, specificities, and dynamism of unilateral practices, especially in digital markets or hybrid digital platforms, there is a question of whether the instruments currently available to competition authorities are sufficient to understand and rule on such practices. In this regard, the analysis of various cases in relatively recent jurisprudence shows a pursuit for new forms of interpretation and application, and even updates, to the methodologies of analysis and of applicable legislation, in order to strike a balance between intervention to curb anticompetitive practices to the extent necessary for protecting competition, without resulting on undue interference in the involved markets or on disincentives to innovation. Historically, discussions about exclusivity clauses and resale price maintenance have been central in this type of investigation, but digital platforms are effectively changing this landscape, giving rise to discussions on new types of conduct or more sophisticated forms of implementing traditional types of conduct, which have become possible or potentially more serious through new technologies, the broad reach of platforms, the collection of massive data, and the international nature of the largest players in these markets. Notions of relevant market, theories of harm, and standards of consumer welfare or protection traditionally adopted by antitrust authorities are under study and may be revised. The heterogeneity of legal systems in different jurisdictions is another complicating factor for national authorities in the analysis of conduct practiced by companies with market power internationally. All these analyses are present in the 25 articles written for this publication by IBRAC. We have articles focused on traditional methods of analysis in traditional markets, as well as articles addressing new trends and recent discussions in digital markets and platforms. In times of pandemic and economic crisis, as expected, approaches to prices and pricing strategies are recurring themes in the works compiled here.
Consumer Protection in the 21st Century: A Global Perspective by William Vukowich Pdf
This comprehensive work covers the consumer protection laws and policies of governing bodies around the world. By presenting materials from edited laws, directives, courts cases, administrative regulations, and commission studies, the author explores the different approaches to the regulation of advertising, sales practices, credit, and product safety and quality. The methods by which consumer protection laws are enforced at the public and private level are also examined. Published under the Transnational Publishers imprint.
Intellectual Property and Private International Law by Toshiyuki Kono Pdf
'Intellectual property and private international law' was one of the subjects discussed at the 18th International Congress of Comparative Law held in Washington (July 2010). This volume contains the General Report and 20 National Reports covering Canada, US, Japan, Korea, India and a number of European countries (Austria, France, Germany, UK, Spain etc). The General Report was prepared on the basis of National Reports. The national reporters not only describe the existing legal framework, but also provide answers for up to 12 hypothetical cases concerning international jurisdiction, choice-of-law and recognition and enforcement of foreign judgments in multi-state IP disputes. Based on their answers the main differences between legal systems as well as the shortcomings of the cross-border enforcement of IP rights are outlined in the General Report. The Reports in this volume analyse relevant court decisions as well as recent legislative proposals (such as the ALI, CLIP, Transparency, Waseda and Korean Principles). This book is therefore a significant contribution to the existing debate in the field and will be a valuable source of reference in shaping future developments in the cross-border enforcement of IP rights in a global context.
The Oxford Companion to the Supreme Court of the United States by Kermit L. Hall Pdf
The Supreme Court has continued to write constitutional history over the thirteen years since publication of the highly acclaimed first edition of The Oxford Companion to the Supreme Court. Two new justices have joined the high court, more than 800 cases have been decided, and a good deal of new scholarship has appeared on many of the topics treated in the Companion. Chief Justice William H. Rehnquist presided over the impeachment trial of President Bill Clinton, and the Court as a whole played a decisive and controversial role in the outcome of the 2000 presidential election. Under Rehnquists's leadership, a bare majority of the justices have rewritten significant areas of the law dealing with federalism, sovereign immunity, and the commerce power. This new edition includes new entries on key cases and fully updated treatment of crucial areas of constitutional law, such as abortion, freedom of religion, school desegregation, freedom of speech, voting rights, military tribunals, and the rights of the accused. These developments make the second edition of this accessible and authoritative guide essential for judges, lawyers, academics, journalists, and anyone interested in the impact of the Court's decisions on American society.
Judicial Review in International Perspective by Gordon Slynn Baron Slynn of Hadley,Mads Tønnesson Andenæs,Duncan Fairgrieve Pdf
Lord Slynn of Hadley is one of the outstanding judges of his time. He has served as a High Court Judge, as an Advocate General and a Judge of the European Court of Justice, and he has been a Lord of Appeal for ten years. This Liber Amicorum bears testimony to the international reputation that he has achieved for his judgments and for his scholarship. In the many distinguished contributions, judges from international courts and from Supreme Courts and Constitutional Courts, together with academics from leading universities around the world, have taken the opportunity to celebrate the accomplishments of Lord Slynn's legal career thus far, and also to discuss areas of law where Lord Slynn can be expected to give important impulses to further development. `Mr Gordon Slynn was outstanding. The best I have ever known. He will go far.' Lord Denning, Master of the Rolls, 1980.
Patent Law in Global Perspective by Professor Ruth L. Okediji,Professor Margo A. Bagley Pdf
Patent Law in Global Perspective addresses critical and timely questions in patent law from a truly global perspective, with contributions from leading patent law scholars from various countries. Offering fresh insights and new approaches to evaluating key institutional, economic, doctrinal, and practical issues, these chapters reflect critical analyses and review developments in national patent laws, efforts to reform the global patent system, and reconfigure geopolitical interests. Professors Ruth L. Okediji and Margo A. Bagley bring together the first collection to explore patent law issues through the lens of economic development theory, international relations, theoretical foundations for the patent law system in the global context, and more. Topics include: the role of patent law in economic development; the efficacy of patent rights in facilitating innovation; patents and access to medicines; comparative patentability standards (including subject matter eligibility for biotechnology and software inventions); limitations and exceptions to patent scope and protection (including exhaustion, compulsory licensing, and research exceptions); patents on plants and other living organisms; and the impact of emerging economies on global patent system governance. The contributors provide a wealth of original insight and thought-provoking discussion that will be of great interest and benefit to scholars, policymakers, and practitioners alike.