International Comparative Jurisprudence最新文献

The distinct character of the Civil Service Tribunal as well as its case-law has led to a number of procedural particularities and innovations. The Civil Service Tribunal encourages the parties to a case to favour an amicable settlement of the dispute. In the staff cases the amicable settlement procedure is of very significant value as it allows achieving a balanced and for both parties to a case acceptable solution.

The particular attention needs to be paid to the allocation of costs according to the rules governing the procedure before the Civil Service Tribunal. It is to be noted that a special rule previously had applied to the staff cases, according to which the applicant did not pay the institution's costs even if he lost the case. The special rule was abolished as from the 1st November 2007 and today a general rule stating that the unsuccessful party shall be ordered to pay the costs has to be applied. However, as it is apparent from the case-law of the Civil Service Tribunal, the general rule is not applied automatically.

Attention must be also drawn to the provisions granting the Tribunal the possibility of ordering any claimant bringing a manifestly abusive action to reimburse the costs occasioned by that action. The Tribunal is faced with an increasing number of actions from claimants who misuse that judicature, the cases brought by those applicants often take up a disproportionate amount of the Tribunal's time and impedes its functioning.

Thus, this article analyses the abovementioned specific aspects of the procedure before the Civil Service Tribunal. These procedural aspects are compared to the aspects of procedure before the Court of Justice and the General Court.

In the field of compensation of non-pecuniary damage, one of the most widely discussed issues is whether and based on which prerequisites those close to a person killed or injured ought to be able to claim compensation for non-pecuniary damage. This article attempts to find answers to these questions by comparing Estonian, German and English law as well as relevant European model laws. The article thoroughly examines Estonian case-law and investigates whether Estonian courts have reasonably substantiated the precondition for a claim for compensation of non-pecuniary damage of a close person under Estonian law, i.e. the occurrence of exceptional circumstances. The article shows the actual possibilities of a person close to the deceased or to an aggrieved person to obtain compensation for non-pecuniary damage under Estonian law.

This article is an interdisciplinary comparative research in constitutional law and political science on government formation. The article analyses the possibility of application of European model of government formation to models in the post-soviet countries based on the analyses of the constitutional frameworks and key political, contextual factors that influence the formation of different types of governments. The research looks at the processes of government formation in Armenia and Georgia and defines the extent to which the government formation processes correspond to the broader European experience. The article provides an empirical basis for further comparative research on coalition formation in Central and Eastern European as well as newly democratic post-Soviet countries. Article is based on constitutional system and political practice of Armenia and Georgia in 2003–2012.

This article deals with the issue of equality in access to publicly funded health care based on the example of two jurisdictions, Finland and Kazakhstan. Legislative provisions of such access differ significantly in these two states. These differences culminate in the notion of citizenship. If Finland guarantees the right to publicly funded health care to everyone who is legally residing within its territory, Kazakhstan departs from that premise in that only its citizens are entitled with such a right. These and other differences led us to enquire into the fundaments of patient rights in both jurisdictions. We find that both states are facing inequalities of disadvantage regarding access to health care by vulnerable population groups. Both jurisdictions strive towards reducing inequalities in factual distribution of health care services, experiencing the phenomenon of gradual deterioration of public health care. In Finland this deterioration is mostly due to the growth of private actors providing health care services, subsidised partly by the state. In Kazakhstan it is due to the inefficient system of funding medical institutions based on the number of citizens registered within a certain institution.

In our opinion, legal solutions against inequalities in access to publicly funded health care regard, firstly, reconsideration of the status of non-citizens in situations of urgent medical interventions. Secondly, they encourage a shift in official legal doctrine towards fuller recognition of individual patient rights, and the introduction of instances dealing with these rights such as, e.g. a patient ombudsman and independent national authority supervising health care services.

This article analyses the application of the forum non conveniens and the judgment enforcement doctrines in the United States courts and questions its conformity with the concept of the rule of law. The concept of the rule of law, the general principle of international law, inter alia requires accessibility of law, that questions of legal right should be decided by law not discretion, and compliance by the state with its obligations in international law. The systematic analysis by the author of this article shows that the application of the two doctrines in the same dispute firstly might deny accessibility of law and later restrict the possibility to find a solution. Such application by the United States courts can create a lacuna in access to justice. Thus, the following denial of effective access to justice, applying the two doctrines, might not obey the concept of the rule of law.

Corruption is a persistent problem that plagues the world. It knows no borders. It is a problem facing post-communist countries as they transition to democracies and market economies, as well as established democracies and other regimes. While the causes of corruption are varied, the tools often suggested to combat corruption include expanded use of whistleblowing in terms of incentives to encourage it and laws to protect whistleblowers. This article examines the role of whistleblowing as a tool to combat corruption. It describes the law and role of whistleblowing in a comparative context, focusing on the United States, the European Union, and Armenia. The article then concludes with recommendations regarding how whistleblowing could be strengthened, especially in Armenia, as an example of a post-communist state, to be an effective tool for addressing corruption.

The purpose of the research is to compare the regulation of the right of publicity in the USA, the EU and Ukraine and to analyze its legal nature.

Conducted examination allowed to conclude on the following. The right of publicity is one of the emerging rights belonging to celebrities who have gained publicity in certain spheres of show business (singers, actors, artists, writers, etc.), the sports industry, or politics; individuals who have become the victims of crime; and others. American legal doctrine has already developed case law and a legal framework allowing famous persons to freely license and transfer their right of publicity. The countries of the EU have not developed a unique approach regarding the right of publicity, while the Bailiwick of Guernsey has introduced a unique system of protection of the so-called image rights, creating a special register of such rights and allowing protection of moral and patrimonial rights to one׳s image, which is broadly defined.

The right of publicity is distinguished from trademarks and copyright; an analysis of their legal nature shows that these objects are not identical.

Current Ukrainian legislation provides for protection of one`s name and image, however the emerging market of show business in Ukraine makes it obvious that the right of publicity shall be introduced into Ukrainian Civil Code. A new right in Ukraine can be based on the example of the American model (i.e. on relevant provisions of the California Civil Code).

Emissions of black carbon from aerospace vehicles pose a challenge to international regulators. This mode of transport is still in its infancy, but is predicted to develop rapidly. Despite the lack of comprehensive scientific research, it has been argued that black carbon is the main contributor to climate change after greenhouse gases.

These emissions, which cause transboundary pollution, cannot be effectively reduced by national laws because of differences in emissions standards. The main challenge is how to regulate them – through binding or non-binding laws – and in which form – harmonisation or unification of laws. International air and space regulations are subject to the trends of politicisation and economisation. The lack of a binding international law that regulates greenhouse gas emissions from the aviation industry is primarily caused by a lack of political will and economic calculations of certain states with respect to limits on their national interests. This article proposes soft law as a solution to stagnation in creating binding international regulations for emissions in the aviation and aerospace industry.

On December 2014, the Court of Justice of the European Union adopted one of the most controversial decisions in recent decades—the famous Opinion 2/13 that precluded the European Union from acceding to the European Convention on Human Rights. This article engages in the analysis of the co-respondent mechanism—one of the most significant features of the Draft Agreement for the accession of the European Union to the Convention. The co-respondent mechanism was intentionally designed to preserve the specific characteristics of the European Union law by precluding the European Court of Human Rights from solving the complex questions of the internal competence division of the European Union. However, notwithstanding that the European Commission and most of the Member States had not seen any significant threats caused by the mechanism, the Luxembourg court rejected the mechanism due to the European Union’s motives for the protection of autonomy. This article analyzes and assesses the objections presented by the Court.

Investigating the civil procedure regulation as a set of interrelated tools and techniques (imperative, dispositive and determinative) providing legal impact on the behaviour of civil procedure participants, this article is to substantiate that the method of civil procedure is a set of techniques (imperative, dispositive and determinative), methods (permissions, regulations, prohibitions, sanctions) and means (the consequences of failure to comply with civil procedural rules) of regulation implemented in the administration of justice in civil cases. However, determinative method of civil procedure regulations is a kind of methodological system of weights and balances, where the dispositive will of the parties and the imperative discretion of the court dialectically transform themselves in a new quality representing a symbiosis of the ways and techniques of civil procedure regulations. Moreover, summarizing the comparative aspect of the conducted research, it is proved that there are more than enough reasonable grounds to state that despite some discrepancy in the scientific approaches of theoretical legal proceedings, the litigation in practice requires the usage of simultaneous methodological techniques for procedural regulation in different countries.