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This work deals with the temporal effect of judicial decisions and more specifically, with the hardship caused by the retroactive operation of overruling decisions. By means of a jurisprudential and comparative analysis, the book explores several issues created by the overruling of earlier decisions. Overruling of earlier decisions, when it occurs, operates retrospectively with the effect that it infringes the principle of legal certainty through upsetting any previous arrangements made by a party to a case under long standing precedents established previously by the courts. On this account, in the recent past, a number of jurisdictions have had to deal with the prospect of introducing in their own systems the well-established US practice of prospective overruling whereby the court may announce in advance that it will change the relevant rule or interpretation of the rule but only for future cases. However, adopting prospective overruling raises a series of issues mainly related to the constitutional limits of the judicial function coupled by the practical difficulties attendant upon such a practice. This book answers a number of the questions raised by this practice. It makes use of the great reservoir of foreign legal experience that furnishes theoretical and practical ideas from which national judges may draw their knowledge and inspiration in order to be able to advise a rational method of dealing with time when they give their decisions.
Offering a unique perspective on an overlooked subject – the relationship between time, change, and lawmaking – this edited collection brings together world-leading experts to consider how time considerations and social, political and technological change affect the legislative process, the interpretation of laws, the definition of the powers of the government and the ability of legal orders to promote innovation. Divided into four parts, each part considers a different form of interaction between time and law, and change. The first part offers legal, theoretical and historical perspectives on the relationship between time and law, and how time shaped law and influences legal interpretation and constitutional change. The second part offers the reader an analysis of the different ways in which courts approach the impact of time on law, as well as theoretical and empirical reflections upon the meaning of the principle of legal certainty, legitimate expectations and the influence of law over time. The third part of the book analyses how legislation and the legislative process addresses time and change, and the various challenges they create to the legal order. The fourth and final part addresses the complex relationship between fast-paced technological change and the regulation of innovations.
Time is a crucial dimension in the application of any law. In tax law, however, where an environment characterized by rapid change on the national, European, and international levels complicates the provision of accurate legal advice, timing is particularly sensitive. This book is the first to analyse the relationship between time and three key areas of tax: treaties, EU law, and constitutional law issues, such as legal certainty and individual rights. Among the numerous timing issues arising out of applying tax rules, the book addresses the following: – time limits within which relief must be requested; – statutes of limitation for claiming a tax refund; – transitional issues relating to changes in tax treaties; – attribution of profits and expenses to a moving or closed-down business; – effect of tax-related CJEU decisions and EU directives; – compliance of exit tax regimes with free movement; – limits of retroactivity under principles protected by the EU Charter and the ECHR; and – conflict between efficiency of taxation and individual rights. Derived from a recent conference organized by the prestigious ATOZ Chair for European and International Taxation at the University of Luxembourg, the book brings together contributions from leading tax experts from various areas of tax practice, academia, and the judiciary. Among other issues, the book notably expands on how economic theory can inform a constitutional analysis of the timing of taxation. There is no other work that concentrates so usefully on the difficulties associated with applying tax rules – whether arising from treaties, jurisprudence, or policy – to changing circumstances over time. This book will quickly prove itself to be an indispensable resource for European tax lawyers, policymakers, company counsels, and academics.
Looking at two of the key paradigms of the post-Cold War era–national sovereignty, and human rights – this book examines the possibilities for their reconciliation from a global perspective. The real or imagined fear of a flood of immigrants has caused and fuelled the surge of an amalgam of populist political forces, anti-immigrant movements, and exclusionist nationalism in many developed countries. In the last decade, we have witnessed the emergence of two phenomena in the political and legal spheres. On the one hand, there are liberal globalists asking for respect and the protection of the basic human rights of migrants and asylum seekers and arguing for their civic and social integration into host societies. On the other hand, there are growing calls for a tougher stance on immigration, and powerful populist politicians and governments have emerged in many developed countries. How can the idea of universal human rights survive exclusionist nationalism that uses a populist, unscrupulous approach to its advantage? The contributors to this book explore the meaning of, and possible solutions to, this dilemma using a wide range of approaches and seek appropriate ways of dealing with these normative predicaments shared by many developed societies. Scholars and students of human rights, migration, nationalism and multiculturalism will find this a very valuable resource.
Constitutional review is a hot topic in contemporary constitutional debate and design. However, the legal force of judicial decisions, and in particular their effect over time, is an under-studied issue in legal literature. This is remarkable, considering the substantial impact of these decisions on the parties or the wider society (in particular, in the case of abstract review), and considering that the choice of retroactive, immediate, or future effects may have at stake legal certainty, the right to effective judicial protection, or the rule of law. This edited volume fills the gap by offering a comparative analysis of legislative choices and jurisprudential developments regarding the effect over time of legal decisions and its implications in both civil law and common law systems, in abstract and concrete review. Both national and European courts are discussed. Country reports are preceded by milestone judgments so as to give insight into what, concretely, is at stake, thereby addressing both scholars and practitioners. (Series: Ius Commune Europaeum - Vol. 120)
What explains variance in presidential power between countries? In Presidential Power in Latin America, Dan Berbecel provides a general, systematic theory for explaining presidential power in practice as opposed to presidential power in theory. Using expert survey data from Varieties of Democracy (V-Dem) alongside interviews with high-level figures in politics, the judiciary, the public administration, NGOs, and academia in Argentina and Chile, Berbecel argues that constitutional presidential power (formal power) is a very poor predictor of presidential power in practice (informal power). Given the poor predictive value of formal rules, he provides an explanation why hyperpresidentialism emerges in some countries but not in others. Berbecel attributes the root causes of hyperpresidentialism to three independent variables (the strength of state institutions, the size of the president’s party in congress, and whether or not the country has a history of economic crises) which together determine how likely it is that a president will be able to concentrate power. Presidential Power in Latin America will be of key interest to scholars and students of executive politics, Latin American politics, and more broadly, comparative politics.
Wang shows how the law in China is conceptually reconfigured and instrumentally employed to shore up an illiberal authoritarian regime.
Many jurisdictions in Asia have vested their courts with the power of constitutional review. Traditionally, these courts would invalidate an impugned law to the extent of its inconsistency with the constitution. In common law systems, such an invalidation operates immediately and retrospectively; and courts in both common law and civil law systems would leave it to the legislature to introduce corrective legislation. In practice, however, both common law and civil law courts in Asia have devised novel constitutional remedies, often in the absence of explicit constitutional or statutory authorisation. Examining cases from Hong Kong, Bangladesh, Indonesia, India, and the Philippines, this collection of essays examines four novel constitutional remedies which have been judicially adopted - Prospective Invalidation, Suspension Order, Remedial Interpretation, and Judicial Directive - that blurs the distinction between adjudication and legislation.
This book explores contemporary issues in respect of causes of action which operate to protect a plaintiff's economic interests. It examines the question from across the spectrum of private law. Focusing mainly on common law principles, it looks in particular at the treatment of such causes of action in the United Kingdom, Australia, Canada, Singapore as well as other common law jurisdictions. Addressing both theoretical and doctrinal issues, this important book will appeal to both private law scholars and practitioners.
Underneath the Golden Boy series of the Manitoba Law Journal reports on developments in legislation and on parliamentary and democratic reform in Manitoba, Canada, and beyond. This issue has articles from a variety of contributing authors including: Darcy L. MacPherson, Brian Bird, Andrew Flavelle-Martin, Brendan Roziere, Dren Maloku, Kasia Kieloch, Nichole Mirwaldt, Allison Fehr, and Jennifer Sokal.