This chapter provides an introduction to Swiss law in general by firstly addressing the Federal structure of Switzerland including the three different levels of government and the legislative, executive and judicial branches of the Swiss Confederation. This chapter then goes to describe the judicial system in Switzerland, focusing on the Federal and Cantonal courts and the manner in which Civil law disputes are dealt with in Switzerland. This chapter thereafter explores the sources of law in the Swiss legal system, namely statutory legal sources, case law and legal doctrine

Class action damages used to be boring. Essentially an accounting exercise, they came at the end of the case, after resolution of the more interesting issues of what the defendant did and whether it was liable for doing it. And because trial rarely happens, especially in consumer class actions where jury awards can be untethered to damages estimates and potentially astronomical, the damages reports quietly served by the dueling expert witnesses near the close of discovery served mainly as a benchmark for pretrial settlement discussions.

The Dispute Settlement Understanding (DSU) was one of the chief results of the Uruguay Round. Dispute settlement under the GATT had not been binding. Adoption of panel reports could be, and too often was, blocked by the losing party. All of the major trading members wanted dispute settlement to be binding, to have definitive results. They carefully constructed a complex system to remedy past defects. It had internal inconsistencies that only became apparent over time.

In the international law of the sea, human activities in the ocean are regulated according to multiple jurisdictional zones. Thus, the spatial distribution of jurisdiction of States is the foundation of the law of the sea. Where the jurisdiction of two or more coastal States overlaps, delimitation of the overlapping marine spaces is at issue. This chapter will deal with rules of international law with regard to maritime delimitation, focusing mainly on the following issues: (1) the cardinal principle applicable to maritime delimitations, (2) the three-stage approach and its limitations, (3) relevant circumstances in the law of maritime delimitation, (4) the delimitation of the continental shelf beyond 200 nautical miles, and (5) the role of international courts and tribunals in the development of the law of maritime delimitations.

[2.1] Contemporary statutory interpretation law involves, broadly, consideration of the statutory text, taking account of its full context and having regard to its purpose. These three concepts have loosely existed in statutory interpretation law for centuries, providing the basis for determining the legislative intent of a statute to varying degrees. This chapter considers the relatively recent history of these key concepts, starting at the beginning of the 20th century. Having some basic knowledge and understanding of this recent history enhances understanding of contemporary concepts and provides historical context to the current law and older cases. Following federation in 1901, Australia continued to be bound, and influenced, by English law. The English approach to interpretation placed considerable emphasis on the grammatical meaning of text, with limited regard to context and purpose.

This chapter concludes the book by charting a path forward for law reform. Suggestions for reform of the significantly more burdensome legal framework in Australia, as opposed to England and Wales, are presented. Throughout this book is a plea for the law to support, rather than impede, trans young people’s gender expression and bodily autonomy.

This chapter focuses on the guiding case system, which is distinctive and cannot be simply explained by current case law theories. More specifically, it first explores the distinctiveness of the guiding case system in the specific context of China, as opposed to other types of case law in liberal democracies, then goes on to explain why the Supreme People’s Court (SPC) has been able to expand its judicial lawmaking authority in the sense of being able to interpret the law through guiding cases. Furthermore, it illustrates that the Main Points of Adjudication (caipan yaodian), as a part of a guiding case, has essentially become a form of statutory interpretation that enables the SPC to independently perform a legislative function to a certain extent without routine surveillance by the Standing Committee of the National People’s Congress (NPCSC). This stands in contrast to the previous practice, where the SPC performed the legislative function merely through having it delegated by the NPCSC. It is further suggested that, under China’s authoritarian regime, the effectiveness of the SPC’s lawmaking function through the guiding case system depends largely on the extent to which the courts could be independent in the context of China.

This chapter investigates judicial precedents in China’s instrumentalist legal system and finds that judges are generally reluctant to refer to a judicial precedent, including a guiding case, in the process of making a judicial decision. It further reveals that the guiding case system has effectively crystallized a bureaucratic system of judicial precedents with guiding cases at the top of the pyramid. A bureaucratic system of this kind is grounded primarily in the political hierarchy of the courts and a nationwide typical-case-selection movement, in which the lower courts are politically responsible for submitting a certain number of typical cases selected from within their respective jurisdictions to the Supreme People’s Court every year. Finally, it attempts to develop a bureaucratic theory of judicial precedents centred on guiding cases that fits into China’s authoritarian context and that differs substantially from any other type of case law in a liberal context.

Andras Gyorgy Kovács researched the effectiveness of competition sanctions from the perspective of an administrative judge. Undertakings in breach of competition law rules are most likely expected to be fined. His hypothesis, ,to be examined through the courts’ case law, is that the level of competition fines is significantly higher than that of criminal penalties. Nevertheless, it is not unusual for the very same undertaking to be reinvestigated by the competition authority for a second or even third time. It seems that the expected legal policy aim of fines in competition matters, i.e. the individual and general prevention of anticompetitive practices, cannot be achieved in all cases. His chapter aims at identifying the reasons thereof and presenting a number of conclusions, to be drawn from the Hungarian administrative courts’ jurisprudence, in respect of the effectiveness of the imposition of fines. He argues that judicial case law can resolve some of the efficiency problems, while others require modification of the legislation. As regards repeated infringements, evaluating this as an aggravating factor may be used in an effective and reassuring way when imposing a fine. He argues for laws which stipulate the imposition of fines proportionate to the infringing undertakings’ income and assets.

In most countries a codified constitution explains the overarching relationship between individuals and the state and establishes a coherent hierarchy of authoritative sources of law. The absence of a codified UK Constitution means that constitutionally significant rules can be found in a range of legal sources including statutes, statutory instruments, the Royal Prerogative and judicial decisions. There is even a prominent role for political understandings, known as conventions. This chapter compares the operation of the UK Constitution to the codified constitutions adopted in most other liberal democracies and introduces constitutional debates which will be developed in later chapters.

This chapter addresses the question of how the CJEU engages with its own past cases in its reasoning. The chapter focuses on how to identify the most legally authoritative precedents in the CJEU non-discrimination jurisprudence that implies a corpus of cases. Frese shows empirically how the corpus of CJEU cases, built over the course of the past sixty years, assigns different degrees of authority to each case according to how the court uses them. This chapter demonstrates that the network approach to the study on precedent provides a highly useful method, which has the specific advantage of shifting the viewpoint of which cases are authoritative from the scholarly perspective to the CJEU’s perspective by tracing the court’s own references and citations to its past cases. In departing from traditional theories of what precedent is and how it constrains, the chapter operationalizes the concept of precedent as, initially, a mathematical authority. By mapping all the references and citations between cases, it is furthermore shown how the court itself creates legal ‘authorities’ in its jurisprudence as it cites some cases very frequently while others less. By highlighting how the network approach provides useful tools for understanding the CJEU’s reasoning and decision-making practices, the chapter also shows that this approach should refine and supplement, rather than substitute, EU law doctrinal analyses.

This chapter presents the institutions of central and local government. The balance of powers in favour of the executive within the Fifth Republic Constitution formalises realities of power. The traditional centralised French state with its local representatives controls many important public services. Developments over the past forty years have given more power to regions and large cities. These have provided a counterbalance to centralisation in economic development. The growth of Independent Administrative Authorities reflects developments in other developed countries. Nearly fifty years of the ombudsman function (now constitutionalised as the Défenseur(e) des droits) provides alternative redress to the administrative courts. The chapter concludes with an overview of the sources of French administrative law. The law is no longer primarily drawn from the case law of the Conseil d’Etat, but the Constitution, the enactment of codes, and the importance of EU law and the European Convention have diversified sources of law. Case law remains more important than in private law and legal scholarship is enriched by the participation of leading members of the Conseil d’Etat as authors.

Two cases that touch on the rights and obligations of States in disputed maritime areas, which have been rendered prior to the entry into force of the LOSC, are Aegean Sea Continental Shelf (Interim Measures) andGuinea-Bissau v. Senegal. After the LOSC became binding on the States parties thereto, the scope and content of Articles 74(3) and 83(3) LOSC were dealt with in Guyana v. Suriname, with both sides to the dispute alleging breaches of the two obligations contained therein. Two more recent cases are Ghana/Côte d’Ivoire and Somalia v. Kenya. Here, the States concerned faced several difficulties because of activities having been undertaken unilaterally within their disputed areas. In the maritime boundary dispute between Ghana and Cȏte d’Ivoire, both the judgment and the interim measures order given by the Special Chamber elaborate on the lawfulness of acts that were unilaterally undertaken by Ghana in their disputed maritime area. The chapter also addresses how the case law relating to the indication of interim measures of protection has an influence on disputed maritime areas, and the rights and obligations that States have in this regard.

Chapter 8 focuses on State practice, with an emphasis on acts taken unilaterally by States in disputed maritime areas, due to which a conflict has arisen in bilateral relations. To provide the most complete picture of acts undertaken unilaterally in disputed waters, examples have been collected from two types of disputes: first, where disputes to title to territory underlie the disputed maritime areas; and, second, where overlapping claims to maritime zones exist. Unilateral conduct in disputed maritime areas is not exclusively concentrated to certain parts of the world. Varying extents of conflicts are created in State practice when activities under the authority of the coastal State – including concessioning, seismic work, exploratory drilling, exploitation, marine scientific research and fisheries activities – are undertaken unilaterally in a disputed maritime area. Reacting to such a unilateral act is often seen as vital by a claimant State, and these reactions can take various forms, including law enforcement. Acting in response might be a double-edged sword, however, as this reaction can sometimes set in motion a spiral of action and reaction, whereby each State feels obligated to react to the other’s act, so as to defend their sovereign rights and interests.

The international legal framework that is applicable to disputed maritime areas consists of conventional law – predominantly found in the LOSC – and general rules of international law. Combined, these form a template of rules and obligations that must be observed by States in relation to their disputed area. Two questions arise in this regard: is the international law that is applicable in disputed maritime areas sufficiently defined? And does this international law actually contribute to prevent conflicts between claimant States, or between a third State, or its nationals, and a claimant States in respect of a disputed maritime area? Differences exist in terms of the amount of conflict that is engendered if one claimant decides to act on its rights in a disputed maritime area, without another coastal State’s prior approval. An important question is how does this aspect influence the issue of what the rights and obligations are of States in disputed maritime areas? Also, whether the scope for unilateralism can be defined conclusively is addressed. However, it becomes clear that determining this scope is made impossible by the variable of the circumstances surrounding a particular disputed maritime area.

Chapter 7 examines the law governing the coercive or violent appropriation of property in armed conflict. The chapter focuses on the crime of pillage and related regulation of property during armed conflict under International Humanitarian Law and through an analysis of the conventions and jurisprudence at international tribunals, addresses the extent to which these respond to the problems of militarization, predation, and irregular warfare.

Chapter 8 examines the law governing the exploitation of people’s labour by fighting organizations. The chapter focuses on the international crimes of enslavement and forced labour in armed conflict, as well as the recruitment of children, with a focus on how prohibitions and crime definitions apply to the predatory exploitation of labour in the context of irregular warfare.