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The law-making activity of the administrative courts in tax matters

Abstract

The aim of this article is to highlight that the actual role of the administrative courts in tax matters is not only applying law, in the classical meaning, but also making law. In fact, those two terms: making law and applying law are difficult to distinguish. The question is, to what extent the administrative courts should participate in law making. The fact is, that in numerous cases judgements protect taxpayers from negative effects of tax regulations.

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The Process of International Law— Making: The Relationship Between the International Court of Justice and the International Law Commission

Abstract

Article 38, para.1, of the Statute of the International Court of Justice (ICJ) defines customary international law as evidence of general practice accepted as law, understood as State practice and opinio juris. However, by identifying certain norms as an international custom without referring to the traditional evidence of State practice and opinio juris, international courts and tribunals are contributing to the formation of customary international law. This paper presents an analysis of how the International Court of Justice contributes to the formation of customary international law by relying on the draft articles of the International Law Commission (ILC). Th e International Court of Justice, in “deciding in accordance with international law”, also authoritatively declares what the current international law is, while the International Law Commission, although constituted of highly qualified publicists from various States, is drafting only non-binding international instruments. By relying on the ILC draft articles and declaring them to be reflecting customary international law-although the draft articles may not be necessary the expression of the States’ practice and their opinio juris, the ICJ creates and generates the creation of customary international law. Interestingly, the ICJ tends to rely mostly on ILC draft articles that refer to the jurisprudence of either the Permanent Court of International Justice (“PCIJ”) or the ICJ itself. Th e paper presents research of approximately 70 ICJ decisions and individual opinions that cite to the work of the ILC. The author notes the evolution of the relationship between the ICJ and the ILC through three different time periods, and presents the findings on how, when and why the ICJ relies on the ILC draft articles. In addition, the author gives examples in which the ICJ rejected the reliance on the ILC’s work, mainly due to the divergent interpretation on the specific area of international law. The ICJ, by relying on the ILC draft articles that in turn refer to the jurisprudence of the ICJ or PCIJ, is not only generating norms of customary international law, but is also reaffirming the importance of its (and PCIJ’s) jurisprudence for the future of international law. Although ICJ decisions are binding only between the parties to the dispute (Art.59 ICJ Statute), the clarification of whether a norm is customary or not, affects the international community of States. Noting the present reluctance of States to adopt treaties, and- hence their potentially decreasing role in international law-making, this research offers an insight into an alternative venue of international law-making. As the international community, and the ILC itself, is regaining interest in the sources of international law, this paper aims to identify the mechanisms of international law-making, the understanding of which will contribute to international law’s needed predictability and a more uniform and reliable interpretation of international law.

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Marriage Capacity, Social Values and Law-Making Process

Abstract

This article explores capacity to marry in depth, beyond the literal statements presented by legal acts in Estonia. Th e discussion will be focusing on answering the following questions: What is the nature of marriage capacity and how it has been developed in Estonia? What are the values that the Estonian Family Law Act (2010) protects when regulating marriage capacity? In addition a brief comparative analysis will seek to explain how different regulations of the EU member states on the same matter (marriage capacity) are. Th is can also help discussions on whether is it justified to talk about cultural differences of EU member states in the context of marriage capacity or not.

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The Law-Making Function of the UN Committee on the Rights of Persons with Disabilities

. Between Idealism and Realism (3 rd ed, OUP 2014). Ulfstein G, ‘Individual Complaints’ in H Keller, G Ulfstein (eds), UN Human Rights Treaty Bodies (CUP 2012). Walter Ch, ‘Der Internationale Menschenrechtsschutz zwischen Konstitutionalisierung und Fragmentierung’ (2015) 57 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 753, 757. Wolfke K, Custom in Present International Law (2 nd edn, Martinus Nijhoff Publishers 1993). Wolfke K, ‘Some Reflections on Kinds of Rules and International Law-Making by Practice’ in J Makarczyk

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Judicial Activism in Nigeria: Delineating the Extend of Legislative-Judicial Engagement in Law Making

Abstract

Authoritarian governments are by their very nature unconstitutional. Such government thinks of themselves as above the law, and therefore sees no necessity for separation of powers or representative governance. Constitutional democracy on the other hand, is however based on the notion of people’s sovereignty, which is to be exercised in limited manner by a representative government. Accordingly, judicial activism in this paper is employed to establish the theory of popular participation of courts in the decision making processes through settlement of disputes, interpretation or construction of laws, determination of propriety of legislations, legislative and execution actions within the doctrine of separation of powers for the purpose of enforcement of the limitations in government on constitutional ground. This paper thus examines the concept of judicial activism, its legitimacy and as a mechanism for providing checks and balances in the Nigerian government. The paper demonstrates a game theory of judicial legislative interaction within their function and contends that the notion of judicial supremacy does not hold water because the legislature always has the second chance of invalidating the judgment of courts exercising the legitimate powers. The paper concludes that judicial activism in these countries is a veritable tool in advancing the compliance with the rule of laws on the ground of the Constitution.

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Taking Decisions on Customary International Law by the International Court of Justice in the Case Jurisdictional Immunities of the State (Germany v. Italy; Greece intervening), 2012

). Roberts A, ‘Traditional and Modern Approaches to Customary International Law: A Reconciliation’ (2001) 95 American Journal of International Law 757. Talmon S, ‘Determining Customary International Law: The ICJ’s Methodology between Induction, Deduction and Assertion’ (2015) 26(2) European Journal of International Law 417. Tams Ch, ‘Meta-Custom and the Court: A Study in Judicial Law-Making’ (2015) 14 The Law and Practice of International Courts and Tribunals 51. Wolfke K ‘Some Persistent Controversies Regarding Customary International Law’ (1993) XXIV

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International Custom and the Experience of Nuremberg

). Wolfke, Great and Small Powers in International Law From 1814 to 1920. (From the Pre-History of the United Nations) (1961). Wolfke K, ‘Some Reflections on Kinds of Rules and International Law-Making by Practice’ in J Makarczyk (ed), Theory of International Law at the Threshold of the 21 st Century. Essays in honour of Krzysztof Skubiszewski (1996) 581. Lord Wright, ‘Hitlerowska okupacja Polski w świetle prawa narodów’ [Hitler’s occupation of Poland in the light of the Law of Nations](1948) Państwo i Prawo 95.

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Custom in the Present International Law of the Sea

Barens, DM Ong (eds), The Law of the Sea. Progress and Prospects (2006) 388. Daillier P, Forteau M, Pellet A, Droit international public (2009). Danilenko GM, Law-Making in the International Community (1993). Distefano G, Buzzini GP, Bréviaire de jurisprudence internationale. Les fondamentaux du droit international public (2005). Dupuy PM, Droit international public (2006). Fidler DP, ‘Challenging the Classical Concept of Custom: Perspectives on the Future of Customary International Law’ (1996) 39 German Yearbook of International

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Peculiarities of Enterprise Mortgage as a New Form of Commercial Charge

BIBLIOGRAPHY 1. Ali, Paul A. U. The Law of Secured Finance . Oxford, 2002. 2. Armour, John. “The Law and Economics Debate About Secured Lending: Lessons for European Law Making”: 3–30. In: Horst Eidenmüller and Eva-Maria Kieninger, eds. The Future of Secured Credit in Europe. European Company And Financial Law Review – Special Volume . Berlin: De Gruyter Recht, 2012. 3. Baranauskas, Egidijus. Įkeitimo teisinis reguliavimas: daktaro disertacija (Legal Regulation of Mortgage: Doctoral Dissertation) . Social Sciences, Law (01S). Vilnius: Law

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