Históricamente – antes de la intervención del Tribunal Constitucional – la legislación laboral otorgaba al trabajador la posibilidad de reincorporarse al centro del trabajo siempre que su despido se encauce dentro de la figura del despido nulo (tutela restitutoria), pues la figura del despido arbitrario solo otorgaba al trabajador la posibilidad de percibir una indemnización (tutela resarcitoria), ello en interpretación del TUO del D.L N° 728 (Ley de Productividad y Competitividad Laboral, en adelante LPCL). Así las cosas, el TC se vio en la obligación de intervenir para evaluar el artículo 34º del TUO del D.L. N° 728, aprobado por D.S 003-97-TR, LPCL en lo referente a la posibilidad del empleador de extinguir la relación laboral cubriendo el pago de una indemnización tasada, lo cual generaba constante controversia entre las partes de la relación laboral en aquellas épocas. En el año 2000 el Sindicato Único de Trabajadores de Telefónica del Perú y la Federación de Trabajadores de Telefónica del Perú (FETRATEL) interpusieron acción de amparo contra las empresas Telefónica del Perú S.A.A. y Telefónica Perú Holding S.A. con el objeto de que se abstengan de amenazar y vulnerar los derechos constitucionales de los trabajadores, en virtud de un Plan de Despido Masivo elaborado por la Gerencia de Recursos Humanos de Telefónica del Perú S.A.A. en aplicación del artículo 34° del Texto Único Ordenado del Decreto Legislativo N° 728, aprobado por el Decreto Supremo N° 003-97-TR.

The treatment of international commercial arbitration in the EU judicial area has been intensely debated, particularly in relation to the scope of the arbitration exclusion contained in the 'Brussels I Regime,' the three EU Brussels instruments on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. The original Brussels Convention was replaced by the Brussels I Regulation, which was in turn replaced by the Brussels I Recast, the current EU legislative framework on jurisdiction. Arbitration was excluded from the scope of the Brussels Convention by virtue of Art 1(4), and the same arbitration exclusion is retained in Art 1(2)(d) of the Brussels I Regulation and the Brussels I Recast. Yet, the interaction of commercial arbitration with the Brussels I Regime in the EU remains controversial despite the arbitration exclusion. The controversy is largely based on the unregulated interface between commercial arbitration and the Brussels I Regime, which is created by the fact that neither the Brussels I Regime nor the New York Convention provide mechanisms to properly address the situation in which matters that are ordinarily addressed in international commercial arbitration may also fall within the material scope of the Brussels I Regime. It follows that international commercial arbitration based on the New York Convention and international commercial litigation based on the Brussels I Regime may interact in the process of the arbitral tribunals and courts of Member States exercising jurisdiction in civil and commercial matters, as both instruments in any such interaction each require respect and obedience, but do not otherwise regulate their potential conflict, this can lead to an undesirable degree of uncertainty between the two regimes. The Brussels I Recast contains a new Recital 12 that provides greater clarity in relation to the scope of the arbitration exclusion in Art 1(2)(d). However, the Recital does not entirely resolve all the questions concerning the arbitration/litigation interface. Therefore, in view of the remaining problems which the Brussels I Recast did not specifically address, it is suggested in this thesis that: (1) the wording of the Treaties relating to the exclusive external competence of the EU should be made clearer; (2) specific rules that will allow the Member State court with jurisdiction under the Brussels I Regime the possibility of staying the litigation at the request of the arbitral tribunal should be included in the future revision of the Brussels I Regime. The proposed solution would not undermine the operation of the New York Convention; neither would it create exclusive external competence of the EU in aspects of international commercial arbitration, which is the main political concern of some Member States with regard to partially including arbitration within the scope of the Brussels I Regime.

The International Court of Justice (ICJ) came into being due to a perceived need for international judicial settlement, whereas the World Trade Organisation (WTO) was created for the purpose of specifically promoting international trade by reducing tariffs and other barriers to trade. Alternative structures for each institution are also considered, as is the older dispute settlement process of arbitration, by means of cases. It is a voluntary submission by both parties to a dispute, when they have agreed on the issues, but need external assistance to proceed further. As a type of judicial settlement, it is binding, can permit third party or non-state involvement, and is a precursor of international tribunals. In the WTO, one aim is to use cases to test conceptual points. The specific aspects of dispute settlement including the application of rules and procedures, and implementation and processes, will be discussed. The working procedures of the Appellate Body (AB) will be analysed in detail. Another aim is to compare with the ICJ, wherever possible. Legal concepts such as jurisdiction, judicial aspects of reasoning, the burden of proof, and the standard of proof will be discussed. The Appellate Body’s (AB’s) standard of review of panel recommendations and rulings will be analysed. Compliance and enforcement are compared between the two organisations. Economic and political considerations will also be touched on when relevant to this study. In the ICJ, the application of concepts such as judicial restraint and activism will be assessed, including the degree of inconsistency found in different cases. The implications of the different types of agreements between states that can lead to or have led to the ICJ’s jurisdiction will be examined, and the impacts assessed. The ambiguity involving provisional measures will be studied in detail. The ICJ’s relationship to the UN Security Council will also be assessed. The lack of monitoring or enforcement, and of no stated compliance timeframe are considered. The thesis will end with various future recommendations.

The law has yet to catch up adequately with conventional aviation. This lag is nowhere more noticeable than in the field of criminal law and criminal jurisdiction as applied to civil aircraft1. Crimes that are committed on board the aircraft will include crimes like assault, theft and unruly behaviour2. A common dominator amongst these crimes is that the rules dealing with jurisdiction pose a significant source of controversy. Early expressions of the criminal conduct in international flights exposed lacunae in air law, which international lawyers are struggling to fill3. Because of this lacuna, as familiar problems present themselves in changing ways, therefore there is a need for a regime governing crimes in the air to be continuously reassessed and developed. In the last years, it became apparent that no rules exist for misbehaviour on board the aircraft in flight4, rules governing the exercise of jurisdiction over common crimes in airspace and on board the aircraft are sophisticated and unsettled / Mini Dissertation (LLM)--University of Pretoria, 2019. / Public Law / LLM / Unrestricted

No description available.

Yes / In 2014, twenty years after the Rwandan genocide, the first trial took place in France of a Rwandan génocidaire, Pascal Simbikangwa, despite the presence on French territory of a number of genocide suspects for many years, various extradition requests by Rwanda – declined by France – and numerous arrests and investigations. This article looks at issues of jurisdiction regarding the Simbikangwa case and the reasons the French courts heard his case, and examines some issues which may be of significance in the choice of arena for the bringing to justice of Rwandans genocide suspects living in France in future.

published_or_final_version / Public Administration / Master / Master of Public Administration

No description available.

Under the Treaty Establishing the European Community, corporations are entitled to free establishment. Recently, the European Court of Justice's Inspire Art decision has clarified its scope and has in principle introduced place of incorporation doctrine as choice-of-law rule, thus granting corporations free choice of the Member State of incorporation. In the US, free choice has caused the "Delaware Effect". This paper analyzes if Inspire Art will cause a similar development in the EU. The EU and US contexts will be compared. Germany will serve as an example. As different circumstances exist in the EU, free choice is more limited and fraught with uncertainties. The thesis of this paper is that regulatory competition in the EU is unlikely and not desirable because of cultural differences. Therefore, minimum harmonization is preferable.

Doctorat en droit / info:eu-repo/semantics/nonPublished