In South Africa, the Labour Courts have experienced an important and continuing controversy regarding the permissible scope of judicial review of arbitration awards of the Commission for Conciliation Mediation and Arbitration (“CCMA”) in terms of section 145 of the Labour Relations Act 66 of 1995 (“LRA”). Section 145(1) of the LRA specifically provides that arbitration awards, generally considered final and binding, can be reviewed and set aside by the Labour Court on the basis of a defect as defined in section 145(2)(a) and (b). These defects are not prescribed in an open-ended manner but limited to decisions involving allegations of misconduct by the commissioner in relation to his or her duties, a gross irregularity in the conduct of the proceedings and/or allegations that the commissioner exceeded his or her powers or that the award was improperly obtained. Unreasonableness and/or irrationality are not included within the scope of a defect as per section 145(2)(a) and (b). Initially, Carephone (Pty) Ltd v Marcus NO & others 1998 11 BLLR 1093 (LAC) found that the interpretation of section 145 was influenced by rational justifiability in accordance with the right to just administrative action as provided for in section 33, read with item 23(2) of Schedule 6, of the Constitution of the Republic of South Africa, 1996 (‘the 1996 Constitution’). Today, leading precedent in the form of Sidumo & another v Rustenburg Platinum Mines Ltd & others 2007 12 BLLR 1097 (CC) dictates that section 145 of the LRA is suffused by reasonableness in accordance with the right to just administrative action as provided for in section 33 of the 1996 Constitution. The ultimate enquiry is whether the arbitration award is one that a reasonable decision-maker could reach as articulated in Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and others 2004 4 SA 490 (CC). However, the enquiry into the reasonableness of a decision is indistinct. As a result, the Labour Courts have struggled to apply the concept of reasonableness in a consistent manner. This thesis seeks to identify the proper role of reasonableness in the judicial review process, including identifying factors that would assist in recognising an unreasonable decision. Relevant principles of judicial review in South Africa in the general administrative law context are considered and distinguished from the process of appeal. An assessment of English case law and commentary in the field of both administrative and employment law is conducted. Finally an extensive examination of South African case law and commentary on the subject, both pre- and post Sidumo, is undertaken. The English law approach is found to provide greater clarity to the interpretation of reasonableness in South African labour law in several respects.

The primary purpose of this treatise is to revisit and reconsider the development of the review test set out in the Constitutional Court judgment of Sidumo & another v Rustenburg Platinum Mines Ltd & Others (2007) 28 ILJ 2405 (CC) and consequently ascertain the correct approach to be adopted by our Labour Courts in the application of such test. The secondary purpose, entail the determination of the extent to which Labour Court judges interfere with the merits of awards and the resulting impact on the distinction between appeal and review. In order to establish whether the test for review was correctly developed and to determine whether our review proceedings deter recurrent interference by our judges, an edifying consideration of judicial review in South Africa, an extensive analysis of various judgements pertaining to such development, followed by a comprehensive comparison with the United Kingdom`s application of review proceedings and judicial composition are made. The research methodology is based on a contour of Sidumo, commencing with the Sidumo judgment, followed by three contentious Labour Appeal Court judgments and concluding with a Supreme Court of Appeal judgement, which clarifies the operation of the review test. The contour is interlinked with the notion of reasonableness. The primary research findings are identified in the judgment of Herholdt v Nedbank Ltd (2013) 34 ILJ 2795 (SCA). The judgment, concluding the Sidumo contour, underlines the current position in our law and consequent narrower approach. A comparison made with the United Kingdom, differentiate between such approach implemented by our courts and the strict gross unreasonableness approach applied by Employment Appeal Tribunals, recognising the finding, that our Labour Court judges ardently interfere with the merits of awards. In the conclusion it is submitted that our labour law jurisprudence will constantly evolve, dictated by our courts interpretation of lawfulness, reasonableness and fairness.

This thesis was focused on the influence of the tax practice of the courts on the assessment of a tax and the retrospective assessment in the Czech Republic. The purpose was to find out if the present law about the tax and fees administration is a sufficient procedural tax norm and if the existing practice of the courts provides us by its interpretation and integral attitude with reasonable juristic certainty of the tax subjects as well as the tax administrator when in the assessment of a tax and retrospective assessment process. Furthermore the new procedural norm which is just being approved these days in law area was examined: if it brings more suitable legal regulations in the selected areas and if it takes into account the conclusions of the practice of the courts. Finally the conclusions which confirmed expectations in the beginning of this thesis were made. The tax administration law can't act as the basic tax norm because its actual reading contains too many deficiencies. Thereunto from the downright analysis arises that the practice of the courts, which is disunited in its resolutions, for ensuring the integral and right procedure of tax assessment and retrospective assessment can't act. The present situation could be improved by coming into enter be of the new procedural tax law -- The Tax Regulation.

Diploma thesis deals with impact of tax practice of the courts on tax collection procedure. The tax collection procedure is an optional part of the tax proceeding and tops the entire process of tax collection. If taxable person fails his tax liability, the tax administrator will be authorized to order a tax execution. Tax administrator follows the act about tax administration. The main object of the thesis was to evaluate the imperfections of this act and express the conclusions about the possibility of judicature to provide enough support of the act's application in praxis. Concurrently was appraised the influence of new procedual act, which was passed and is going to come into effect next year. The conclusions arise from the historical and law analysis.

La recherche d'une « plus grande proximité » avec le consommateur n'est pas qu'une formule à la mode désignant un phénomène conjoncturel, comme en témoigne l'utilisation récurrente de ce concept dans différents champs des sciences humaines pour analyser les relations interpersonnelles, inter-entreprises ou entre clients et fournisseurs. L'objectif de ce travail doctoral est de spécifier le concept de proximité perçue du point de vue du marketing et d'analyser son rôle dans la gestion de la relation du client au point de vente. Cette recherche, menée, dans le cadre spécifique de la vente directe de produits alimentaires, démontre l'intérêt théorique et managérial du concept de proximité.Une revue de littérature et une étude qualitative par entretiens semi directifs menée auprès de 35 acheteurs, dans différents formats de vente directe de produits alimentaires (AMAP, Marchés et Points de ventes collectifs) permet tout d'abord de démontrer que le concept de proximité perçue est multiforme : 1- la proximité d'accès correspond à la facilité et la praticité perçue qu'a le consommateur pour se rendre sur le point de vente; 2- la proximité relationnelle, exprime la force de la relation directe entre le personnel en contact et le consommateur ; 3- la proximité identitaire, renvoie à un partage de valeurs avec le le point de vente et enfin 4- la proximité de processus, est liée au partage de connaissances sur son fonctionnement interne. Une échelle de mesure de ces formes de proximité est proposée, puis validée.Dans un second temps, l'application empirique de cette échelle de mesure, auprès de 579 acheteurs, dans trois formats de vente directe fournit une mesure effective de la proximité perçue dans ce contexte. Ces études permettent, via un modèle d'équations structurelles, de tester l'impact des différentes formes de proximité sur la confiance, attestant du pouvoir prédictif du concept. Les résultats montrent en effet que la confiance à l'égard du circuit de vente directe est influencée positivement par : la proximité identitaire, la proximité de processus, et la proximité d'accès. En revanche, la proximité relationnelle n'influence pas directement la confiance à l'égard du circuit. Elle y participe néanmoins via son rôle dans la construction des autres formes de proximité.Dans un troisième temps, prenant appui sur ces mêmes enquêtes, nous démontrons le pouvoir discriminant du concept. Tout d'abord vis-à-vis des formats de vente. Les Points de vente collectifs génèrent en effet une proximité identitaire plus forte, accompagnée par une formalisation et une communication plus importantes de leurs valeurs et principes d'action. Les AMAP créent quant à elles davantage de proximité de processus. Proposant à leurs adhérents de participer aux activités de production mais également à l'organisation et la gestion de la distribution, elles renforcent le sentiment de contrôle des consommateurs. Sur les marchés, où la dynamique collective est quasi inexistante et les principes de fonctionnement ni formalisés ni communiqués, les différentes proximités perçues sont significativement plus faibles.Le concept de proximité discrimine également les consommateurs. Une segmentation en fonction de la proximité perçue montre qu'il est possible de distinguer trois types de consommateurs : les intimes, caractérisés par une proximité multiforme (identitaire, relationnelle et de processus), les affiliés qui se sentent proches des valeurs et des manières de travailler mais prennent peu de temps pour échanger et les distants qui ne se sentent proches du point de vente qu'à travers les valeurs qu'il représente.Enfin, une enquête quantitative complémentaire conduite auprès de 1208 clients de boucheries, petits commerces d'alimentation et primeurs nous permet de démontrer la spécificité de la vente directe uniquement en terme de proximité identitaire, remettant en cause l'idée d'une proximité relationnelle plus forte dans ces circuits. / The desire for a "closer relationship" with the consumer is not just a buzzword denoting a conjunctural phenomenon. The recurrent use of this concept in social sciences to analyze interpersonal and inter-enterprise relationships or relationships between customers and suppliers testifies it. This thesis specifies the concept of perceived closeness from the marketing point of view and analyzes its role in the management of customer relationship to the point of sale. Conducted in the specific context of direct selling of food products, this research demonstrates the theoretical and managerial interests of the concept of closeness.A literature review and a qualitative study using semi-directive interviews conducted with 35 customers in different formats of direct sale of food products (CSA, Markets and farm shops) demonstrates that the concept of perceived closeness takes many forms: 1- the access closeness is the ease and convenience perceived by the consumer to go to the point of sale 2- relational closeness expresses the strength of the direct relationship between the salesperson in contact and the consumer 3- identity closeness refers to values shared with the point of sale and finally 4- process closeness is related to the sharing of knowledge about the internal functioning of the point of sale. A measurement-scale of these forms of closeness is given, and then validated.In a second time, the empirical application of this measurement scale, to 579 customers in three formats of direct sales provides an effective measure of perceived closeness in this context. These studies, using a structural equation model, allow to test the impact of different forms of closeness on trust, demonstrating the predictive power of the concept. Results show that trust in the direct point of sale is positively influenced by identity closeness, process closeness and access closeness. However, relational closeness does not directly influence customer trust in the point of sale. It participates to it via its role in the construction of other forms of closeness.In a third part, we demonstrate the discriminative power of the concept. Firstly towards the sales formats. Farm shops generate a stronger identity closeness accompanied by a greater formalization and communication of their values and principles. CSA create for their part greater process closeness. By allowing their members to participate in production but also in the organization and management of the distribution of products, they reinforce the consumer's sense of control. On the markets, where the collective dynamics is almost nonexistent and the principles of operation neither formalized nor communicated, the different forms of perceived closeness are significantly lower.The concept of closeness is also discriminant for consumers. A segmentation according to the perceived closeness shows that it is possible to distinguish three types of consumers: the intimates, characterized by a multifaceted closeness (identity, relational and process), the affiliates who feel close to the values and ways of working but take little time to exchange, and the distants who feel close to the point of sale only through the values it represents.Finally, a complementary quantitative survey of 1208 customers of small food shops, of butcheries, and of fruit and vegetables shops, allows us to demonstrate the specificity of direct sale only in terms of identity closeness, challenging the idea of a stronger relational closeness in these circuits.

The focus of both academic and public debate on the expression of work-related conflict has long been focused on strikes. Substantial declines in collective disputes have been associated with more harmonious and less conflict-laden employment relations. This research deals with another, often forgotten form in which conflict is manifested, namely the settlement of individual conflicts through labour courts or employment tribunals. Its aim is to explore and explain differences in application rates to national judicial bodies both across countries and over time. Using a novel database on 23 European Union Member States, it is found that a substantial degree of variance exists; claim rates across Europe differ substantially, and countries have developed along different lines. The explosion of court applications is found to be exceptional, and stability or volatility is identified in the large bulk of EU Member States. In order to explain cross-sectional and time differences, the research draws on wide range of literature, develops a new procedural concept of conflict, and proposes a comparative neo-institutionalist framework accounting for both institutions and actors. The theoretical discussion elaborates three sets of arguments to predict claim incidence. First, it is argued that the existence of comprehensive collective industrial relations institutions, particularly employee workplace representation and collective agreements, tend to reduce the frequency of labour court claims. Second, the amount and complexity of employment regulation is argued to have an impact on the incidence of court applications. Finally, cyclical economic conditions and individual characteristics of the potential grievant are expected to predict the phenomenon. Empirical evidence is presented from a range of different data sources, such as national administrative data and large-scale surveys for three country case studies on France, Germany and the United Kingdom. Findings support that all three sets of explanations contribute to the explanation of the incidence of labour court claims. Moreover, data seem to confirm the need for an interdisciplinary approach drawing on different bodies of literature.

This thesis examines the tension between the evolving demand for the protection and promotion of human rights and the dissatisfaction with the legal institutions charged with these responsibilities. This problematique is examined and reconstructed with the objective of determining how Canadian legal institutions could be structured so as to more effectively contribute to the achievement of social justice. A critical theory approach is undertaken in this thesis. This method involves the development of a transformative ideal against which current practices are examined. This juxtaposition illuminates both the problems with, and the possibilities of, the courts and human rights commissions in interpreting and applying human rights norms. The transformative ideal comprises two elements. The first element postulates that the legal institutional role should be conceived as contributing to a broad and evolving discourse on human rights and responsibilities within the public sphere. The second element holds that this role should be enhanced through the development of transformative human rights practices and their integration into legal processes. The transformative ideal is constructed through a series of six discussions comprising: (1) the development of an analytical framework based on the concepts of social transformation, social justice, human rights and the right to equality; (2) an examination of the critique of the role and functions of courts and human rights commissions; (3) an elaboration of a normative account of the public sphere and discourse together with a discussion of the role of human rights norms therein; (4) a discussion of current mediation practices in the human rights context leading to the development of a normative model of transformative mediation; (5) an examination of the transformative ideal in human rights commission practices; and (6) an exploration of the transformative ideal in court practices. The thesis concludes that the transformative ideal and particularly the concept of transformative human rights practices, will assist in reform of Canadian legal institutions so as to enhance social justice. / Law, Peter A. Allard School of / Graduate

The subject of this thesis is criminal justice sentencing policy. The thesis examines the role of the Drug Court in diverting drug dependent offenders from the conventional Criminal Justice System. A large percentage of convicted offenders have a drug addiction problem and such offenders impose staggering burdens on an already overwhelmed Criminal Justice System. Diversion programs offer a practicable alternative to the traditional court system, and this thesis will investigate the feasibility of a Drug Court in Vancouver, British Columbia, Canada. In examining the advantages and disadvantages of this method of sentencing, the thesis assesses the value of compulsory treatment and determines whether criminal justice sanctions should incorporate compulsory treatment initiatives. To aid in this analysis, additional diversion programs for drug addicted offenders are examined. The Drug Court is assessed through a comparison of the court with traditional sentencing principles. This thesis analyses the success of the Drug Court in other jurisdictions and looks at how the Drug Court deals with the sociological and environmental factors linked to drug abuse and criminality. In determining whether a Drug Court is a feasible option for Vancouver, the thesis examines these external crimogenic factors and the strategies undertaken by the City to combat drug-related crime. It is argued that the conventional criminal justice system provides little, if any, progressive and pro-active drug abuse intervention. This thesis concludes that Vancouver should implement a Drug Court to divert offenders from the traditional court system, and argues that the Drug Court diversion program should be available for drug-dependent property offenders. It identifies how the court can operate alongside pre-existing community services to ensure that post-release environmental conditions are conducive to drug abstinence and legitimate activity. In recommending adoption of the drug court program, the thesis stresses the importance of making this diversion scheme part of a community-based, long-term, holistic intervention strategy. The thesis ends with practical suggestions for implementation of a Drug Court program in Vancouver. / Law, Peter A. Allard School of / Graduate

L.LM. (International Commercial Law) / This dissertation, properly speaking, deals only with the recognition of foreign monetary judgments. In common parlance, however, the terms ‘recognition’ and ‘enforcement’ have blended, with “enforcement” being used more commonly to refer to “recognition” than the term recognition is. Throughout this paper, the terms will be used interchangeably to refer to the classic concept of recognition; that is to say the circumstances in which a court will allow a foreign party to enforce a foreign judgment. Central to this paper is the recent South African Supreme Court of Appeal (hereinafter SCA) case of Richman v Ben-Tovim. This includes a critical discussion of the submissions made by the SCA in reaching its decision. The author is of the view that the SCA in hearing a case of this nature ought to have considered a comparative study of the private international law rules applied elsewhere.

Orientador: Fernando Teixeira da Silva / Dissertação (mestrado) - Universidade Estadual de Campinas, Instituto de Filosofia e Ciências Humanas / Made available in DSpace on 2018-08-26T12:02:48Z (GMT). No. of bitstreams: 1 Fornazieri_LigiaLopes_M.pdf: 1035416 bytes, checksum: a70856a70d00a7cc885b27c9eedefdb6 (MD5) Previous issue date: 2014 / Resumo: Este estudo é dedicado à análise da criação e da legitimação da Justiça do Trabalho no Brasil, desde a sua previsão na Constituição de 1934 até a publicação da Consolidação das Leis do Trabalho (CLT), através das discussões ocorridas tanto no âmbito jurídico como político em torno do tema, tendo como ponto principal a discussão entre Oliveira Vianna, responsável pela elaboração do anteprojeto de organização da Justiça do Trabalho, Waldemar Ferreira, deputado encarregado de dar parecer à proposta. Além disso, recorreu-se a análise de processos trabalhistas que transcorriam em tribunais que passavam por mudanças e dificuldades. Com isso, foi possível que se estabelecesse um panorama da situação do Direito do Trabalho no Brasil e dos atores envolvidos na definição de tal tema / Abstract: This study is dedicated to analysis of the creation and legitimization of the Labor Court in Brazil, since its prediction in the 1934 Constitution until the publication of the Consolidation of Labor Laws (CLT), through discussions at both the legal and political context in the theme, the main point of the discussion Oliveira Vianna, responsible for drafting the bill for the organization of the Labor Court, Waldemar Ferreira, deputy in charge of advising the proposal. In addition, we resorted to the analysis of labor processes that were taking place in courts that passed through changes and difficulties. Thus, it was possible to establish that the present situation of the Labor Law in Brazil and the actors involved in defining such a theme / Mestrado / Historia Social / Mestra em História