ABSTRACT
This essay offers a few remarks on arbitration in Italy where arbitration is still a niche alternative to traditional litigation before the courts. The initiatives taken by arbitral institutions in the face of the challenges to the proper functioning of the courts brought about by the Covid-19 pandemic have kindled new interest in arbitration, and further reforms of the Code of Civil Procedure (expected by the end of 2022) could increase the appeal of arbitration in Italy. The research methodology applied to this essay is the traditional doctrinal methodology aimed at identifying the relevant legal rules, discussing their meanings and the principles supporting them, without overlooking their ambiguities and flaws. Special attention is paid to a few new trends emerged during the Covid-19 pandemic, as well as to a set of forthcoming reforms that should improve the quality of Italian civil justice.In conclusion, some proposals are presented to make arbitration more attractive in Italy. Firstly, the time has come to get rid of the distinction that is only known in Italy and that causes a lot of confusion, between true arbitration (arbitrato rituale), governed by the Code of Civil Procedure, and so-called "free arbitration" (arbitrato irrituale). Then, it is suggested the adoption of a fast-track arbitration, especially for the resolution of disputes in which the value at stake is modest and the legal issues in dispute are not highly complex. © 2022, Universidade do Estado do Rio de Janeiro. All rights reserved.
ABSTRACT
The importance of the public hearing's principle or public of trial sessions clearly appears through the guarantee it provides to litigants during the hearing of the case before the court. This principle is affirmed in the Palestinian Civil and Commercial Procedures Law No. 2 of 2001 as well as in the Palestinian Basic Law of 2003. Public hearings are one of the fundamental guarantees in the litigation process because they create a kind of popular monitoring of the work of the judiciary, and they also create a sense of reassurance between people and litigants about the fairness and impartiality of the judges. This is what is stipulated by the laws of most countries, but it should be noted in this regard that each rule has an exception, so the general principle is public of trial sessions, but the Palestinian legislator excluded some cases and gave the court freedom to make the session secret in certain cases. These cases relate to maintaining the confidentiality and sanctity of the family as well as preserving public order and morals in society. In addition, recently, hearings have become restricted to the parties to the case and their lawyers due to the (Covid-19) pandemic under the pretext of social distancing, prevention and public safety measures. © 2022 Bangladesh Institute of Legal Development. All Rights Reserved.
ABSTRACT
Dating back to the Civil War, the False Claims Act (FCA) is a powerful weapon that the U.S. government (government) wields to combat fraud. In particular, the FCA contains "qui tam" provisions wherein a whistleblower, known as a "relator," may bring claims in the government's name and retain a portion of any resultant recoveries. While the FCA allows the government to dismiss a qui tam claim notwithstanding the objections of relator, there is a four-way circuit split on the appropriate standard of review for such motions to dismiss. From 2003 through 2020, the split was only between the Ninth Circuit's Sequoia standard, which requires the government to demonstrate the dismissal is rationally related to a valid governmental objective, and the D.C. Circuit's Swift standard, which confers nearly unfettered deference to the government. The year 2020 ushered in a new era of judicial debate with the Seventh Circuit creating a third standard based on the Federal Rules of Civil Procedure and the First Circuit promulgating an entirely different standard-one that requires the government to provide reasons for dismissal. The First Circuit standard also requires dismissal to be granted unless there is a constitutional infirmity or evidence of fraud. This circuit split was thrust into the spotlight in 2018 when Michael Granston, Director of the Department of Justice (DoJ) Commercial Litigation Branch, Fraud Section, promulgated guidance instructing DoJ attorneys to consider dismissing qui tam cases to curb meritless qui tam cases, conserve government resources, and prevent unfavorable precedents. Senator Charles "Chuck" Grassley (R-Iowa), a life-long whistleblower champion, has publicly criticized these dismissals as pretextual and antithetical to the spirit of the FCA. In October 2021, Senator Grassley proposed an FCA amendment that essentially codifies the Sequoia standard. Shortly before this article was sent to the publisher, the Supreme Court granted certiorari to address this question. This article examines the historical context of the qui tam provisions that ultimately gave rise to the circuit split as well as the DOJ's recent use of its dismissal authority. It further evaluates Senator Grassley's proposed FCA amendment and argues that it does not substantively settle key nuanced issues that continue to drive judicial disagreement. In light of the evolution to a four-way circuit split and the recent increase in judicial divergence, this article argues that the government's dismissal authority is well-suited for Supreme Court intervention. Finally, this article examines why the dismissal authority particularly matters now. With a newly emerging circuit split on whether a denied government motion to dismiss can be appealed and the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) introducing significant opportunities to commit fraud against the government, it is imperative that all FCA litigants have clarity on the contours of the government's dismissal authority.
ABSTRACT
The purpose of this study is to comprehensively consider the current issues in the field of optimising the contractual practice of business entities, which are determined by the spread of the pandemic in most countries, with the formulation of author's proposals for improving legislative regulation in this area. As a result of the conducted research, the authors concluded that in the conditions of unstable and unpredictable development of the situation regarding quarantine restrictions, legislative regulation of the procedure for concluding contracts, and the procedure for implementing fixed contractual requirements, legislative regulation should reach a qualitatively new level of legal regulation, for which the co-authors proposed a number of amendments to the text of current regulations in this area. Copyright © 2022 Inderscience Enterprises Ltd.
ABSTRACT
The article deals with selected legal problems of using videoconferencing technology in cross-border civil court proceedings in the EU, especially for the taking of evidence. The research is premised on the observation of a steep increase of videoconferencing during the recent Covid-19 pandemic, which exposed inherent legal issues of using the technology and derived legal issues, which result from the limitations of the technology. The national judiciaries of the EU member states were arguably ill-prepared for the mass adoption of videoconferencing, scrambling to quickly mediate the situation with soft-law approaches and less often by legislative intervention. The makeshift measures can be said to be lackluster as they were not prepared to develop a holistic approach. In the article we describe the most glaring and persistent problems of videoconferencing and then check for solutions in applicable international yet non-binding instruments, such as the European Council’s Guide on videoconferencing in cross-border proceedings and the newly updated Guide to Good Practice on the Use of Video-Link under the 1970 Evidence Convention. We attempt to provide an evaluation of these instruments as orientation for the national judiciaries and legislatures. We further analyze how the use of videoconferencing may adversely affect the immediacy of the proceedings. © 2022, Goce Delchev University of Shtip. All rights reserved.
ABSTRACT
The judiciary has always been a crucial part of rule of law states and open societies, guaranteeing the right to protection, if needed, to perform and establish justice in general. Today, we face many challenges that require a more flexible and more resilient judicial mechanism aimed at achieving fair and equal justice for all amid pandemics, armed conflicts, and crises. In this article, we explore the Ukrainian experience in civil justice development, which is worth attention for many reasons. Despite the soviet inheritance's wide-reaching impact on legal development, 30 years later, novel approaches have been realized in the new Civil Procedure Code of Ukraine. Therefore, in the first part of the article, particular attention will be devoted to the dichotomy of the right of protection vs dispute resolution as the main aim of civil justice evolution in a democratic state. In the second part, we will summarize how to ensure equal access to justice amid COVID-19. Comparing the examples of Ukraine and Austria provided a basis for the concluding remarks, which allow us to contribute to furthering civil justice evolution for the next generation. © 2022 by the authors.
ABSTRACT
Objective: The study proposes a phenomenological analysis of the contradictory during the declared pandemic scenario, to identify challenges and possibilities for its effectiveness. To this end, it proposes the updating of legal hermeneutics, as a condition for the possibility of constructing constitutionally adequate and compatible responses to Fundamental Rights and Guarantees, in the virtual environment, through the practice of procedural acts Methodology: The deductive methodology is used, upon the technique of bibliographic research. Results: The article defends the possibility of correct answers in law, with semantic delimitations of the contradictory principle, constitutionally adequate to effect influence and not surprise, in the virtual environment, today enhanced by the Covid-19 pandemic. Contributions: The study addresses the influence of the constitutional reading of the contradictory, which through philosophical hermeneutics and the linguistic ontological turn, makes procedural guidelines compatible to guide the practice of electronic procedural acts. © 2021, Centro Universitario Curitiba - UNICURITIBA. All rights reserved.