Pub Date : 2019-06-28DOI: 10.13165/J.ICJ.2019.05.006
Marek Antoš
This article deals both with the legal regulation and practical experience with the right to free access to information in the Czech Republic. It presents basic features of constitutional and legal regulation. The issue of the effectiveness of the mechanisms available to an applicant for information in the event that the obliged entity does not want to provide said information, as well as the problem of conflict with the right to privacy (in the case of providing information on public employees' salaries are discussed in detail. The article illustrates how the right to free access to information is very widely used in the Czech Republic, in particular due to liberal legal regulation and the very friendly approach of administrative courts, without the need for a robust constitutional basis. However, maintaining this situation is also dependent on the Constitutional Court, which has recently become more restrictive when the right to free access to information conflicts with other rights.
{"title":"The Constitutional Right to Information in the Czech Republic: Theory and Practice","authors":"Marek Antoš","doi":"10.13165/J.ICJ.2019.05.006","DOIUrl":"https://doi.org/10.13165/J.ICJ.2019.05.006","url":null,"abstract":"This article deals both with the legal regulation and practical experience with the right to free access to information in the Czech Republic. It presents basic features of constitutional and legal regulation. The issue of the effectiveness of the mechanisms available to an applicant for information in the event that the obliged entity does not want to provide said information, as well as the problem of conflict with the right to privacy (in the case of providing information on public employees' salaries are discussed in detail. The article illustrates how the right to free access to information is very widely used in the Czech Republic, in particular due to liberal legal regulation and the very friendly approach of administrative courts, without the need for a robust constitutional basis. However, maintaining this situation is also dependent on the Constitutional Court, which has recently become more restrictive when the right to free access to information conflicts with other rights.","PeriodicalId":32140,"journal":{"name":"International Comparative Jurisprudence","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-06-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"66262420","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-06-28DOI: 10.13165/J.ICJ.2019.05.001
M. Maliska
An investigation of issues of constitutional law often requires an interdisciplinary analysis. Constitutional law is also related to the economy, with constitutional stability depending on economic stability. Emerging economies face difficulties in remaining constitutionally stable. The Brazilian economic crisis generated a constitutional instability whose consequences are still unpredictable. The fragility of democracy in the country promotes the fragility of institutions and the Constitution itself. A purely normative discourse of the Constitution is insufficient, and it is necessary to rescue the politics and reorder the country politically.
{"title":"The Problem of Constitutional Instability in Emerging Economies: The Case of Brazil","authors":"M. Maliska","doi":"10.13165/J.ICJ.2019.05.001","DOIUrl":"https://doi.org/10.13165/J.ICJ.2019.05.001","url":null,"abstract":"An investigation of issues of constitutional law often requires an interdisciplinary analysis. Constitutional law is also related to the economy, with constitutional stability depending on economic stability. Emerging economies face difficulties in remaining constitutionally stable. The Brazilian economic crisis generated a constitutional instability whose consequences are still unpredictable. The fragility of democracy in the country promotes the fragility of institutions and the Constitution itself. A purely normative discourse of the Constitution is insufficient, and it is necessary to rescue the politics and reorder the country politically.","PeriodicalId":32140,"journal":{"name":"International Comparative Jurisprudence","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-06-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46054288","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-06-28DOI: 10.13165/J.ICJ.2019.05.008
M. Ferrari
This article presents legal aspects of compliance law in France. The article analyses the distinctive and connected aspects of compliance and corporate law. It has been stated that compliance law has theoretical and legal expression, which are not only interconnected but also complement one another. The article’s discourse emphasises that national (French) legislation, in order to be effective, reflects the tendencies of the Anglo-Saxon concept of compliance law. The article looks at this issue not only from a legal point of view, but also with an emphasis on the humanist aspect of legal order. The article concludes that compliance law not only benefits companies and markets, who sometimes confuse compliance law and financial law, but also contributes to the upholding of humanistic ideals.
{"title":"COMPLIANCE LAW IN THE FRENCH CONTEXT: NEW HORIZONS FOR LEGISLATIVE POLICY","authors":"M. Ferrari","doi":"10.13165/J.ICJ.2019.05.008","DOIUrl":"https://doi.org/10.13165/J.ICJ.2019.05.008","url":null,"abstract":"This article presents legal aspects of compliance law in France. The article analyses the distinctive and connected aspects of compliance and corporate law. It has been stated that compliance law has theoretical and legal expression, which are not only interconnected but also complement one another. The article’s discourse emphasises that national (French) legislation, in order to be effective, reflects the tendencies of the Anglo-Saxon concept of compliance law. The article looks at this issue not only from a legal point of view, but also with an emphasis on the humanist aspect of legal order. The article concludes that compliance law not only benefits companies and markets, who sometimes confuse compliance law and financial law, but also contributes to the upholding of humanistic ideals.","PeriodicalId":32140,"journal":{"name":"International Comparative Jurisprudence","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-06-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46753706","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-06-28DOI: 10.13165/J.ICJ.2019.05.009
Anogika Souresh
International criminal tribunals have procedural rules of both an adversarial and inquisitorial nature. Such tribunals portray that it is possible to amalgamate what are often thought of as dichotomous models. This essay seeks to show that these are, in fact, not dichotomous models but are increasingly converging in both national and international judicial systems. The reasons for the adversarial/inquisitorial distinction being a redundant conversation are threefold: firstly, there is no longer a “pure” adversarial or inquisitorial system, with national judicial systems increasingly incorporating elements of both; secondly, the norms of human rights necessitate the convergence of the two models; and finally, the unique context and goals of international justice mean that the perceived dichotomy of the adversarial/inquisitorial system is no longer relevant. As a result, international criminal tribunals portray that it is possible to incorporate elements of both systems into a single judicial system.
{"title":"THE ADVERSARIAL VS INQUISITORIAL DICHOTOMY IN INTERNATIONAL CRIMINAL LAW: A REDUNDANT CONVERSATION","authors":"Anogika Souresh","doi":"10.13165/J.ICJ.2019.05.009","DOIUrl":"https://doi.org/10.13165/J.ICJ.2019.05.009","url":null,"abstract":"International criminal tribunals have procedural rules of both an adversarial and inquisitorial nature. Such tribunals portray that it is possible to amalgamate what are often thought of as dichotomous models. This essay seeks to show that these are, in fact, not dichotomous models but are increasingly converging in both national and international judicial systems. The reasons for the adversarial/inquisitorial distinction being a redundant conversation are threefold: firstly, there is no longer a “pure” adversarial or inquisitorial system, with national judicial systems increasingly incorporating elements of both; secondly, the norms of human rights necessitate the convergence of the two models; and finally, the unique context and goals of international justice mean that the perceived dichotomy of the adversarial/inquisitorial system is no longer relevant. As a result, international criminal tribunals portray that it is possible to incorporate elements of both systems into a single judicial system.","PeriodicalId":32140,"journal":{"name":"International Comparative Jurisprudence","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-06-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45639036","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-12-27DOI: 10.13165/j.icj.2018.12.004
Remigijus Jokubauskas
The goal of this article is to analyse the practical problems of the application of Article 8(1) of the Brussels Ia regulation which establishes derived jurisdiction for related claims. Firstly, it focuses on the nature of derived jurisdiction in the EU law. Secondly, it analyses in detail the main elements of this provision (connectedness of claims and irreconcilability of judgments) and the doctrine of the abuse of the EU law. Thirdly, it covers the application of Article 8(1) of the Brussels Ia regulation in cases deriving from infringement of competition, patent and design laws.
{"title":"PRACTICAL PROBLEMS OF THE APPLICATION OF ARTICLE 8 (1) OF THE BRUSSELS IA REGULATION","authors":"Remigijus Jokubauskas","doi":"10.13165/j.icj.2018.12.004","DOIUrl":"https://doi.org/10.13165/j.icj.2018.12.004","url":null,"abstract":"The goal of this article is to analyse the practical problems of the application of Article 8(1) of the Brussels Ia regulation which establishes derived jurisdiction for related claims. Firstly, it focuses on the nature of derived jurisdiction in the EU law. Secondly, it analyses in detail the main elements of this provision (connectedness of claims and irreconcilability of judgments) and the doctrine of the abuse of the EU law. Thirdly, it covers the application of Article 8(1) of the Brussels Ia regulation in cases deriving from infringement of competition, patent and design laws.","PeriodicalId":32140,"journal":{"name":"International Comparative Jurisprudence","volume":"4 1","pages":"105-116"},"PeriodicalIF":0.0,"publicationDate":"2018-12-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45775473","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-12-27DOI: 10.13165/j.icj.2018.12.001
Magdalena Jaś-Nowopolska
This article provides an overview of the essential features of the Energy Charter Treaty (ECT). Keeping in mind that the European Union needs an efficient and integrated internal energy market, the paper analyses the ECT provisions related to both investment protection and problems of arbitration arising from these provisions. The objective of this article is also to present the most significant recent case law settled under the Energy Charter Treaty. The cases demonstrate the complexity of the problems related to ensuring ECT arbitration. Special attention is paid to the most recent CJEU case (Slovak Republic v. Achmea of 6 March 2018), analysing the investor state arbitration clauses in bilateral investment treaties (BITs) and the implications of this judgment on the energy sector. Although, according to the Vattenfall case, the Achmea case did not affect the jurisdiction of tribunal under the Energy Charter Treaty, this article reflects the challenges that might be expected in the future.
{"title":"THE INFLUENCE OF THE ENERGY CHARTER TREATY ON THE EUROPEAN ENERGY MARKET","authors":"Magdalena Jaś-Nowopolska","doi":"10.13165/j.icj.2018.12.001","DOIUrl":"https://doi.org/10.13165/j.icj.2018.12.001","url":null,"abstract":"This article provides an overview of the essential features of the Energy Charter Treaty (ECT). Keeping in mind that the European Union needs an efficient and integrated internal energy market, the paper analyses the ECT provisions related to both investment protection and problems of arbitration arising from these provisions. The objective of this article is also to present the most significant recent case law settled under the Energy Charter Treaty. The cases demonstrate the complexity of the problems related to ensuring ECT arbitration. Special attention is paid to the most recent CJEU case (Slovak Republic v. Achmea of 6 March 2018), analysing the investor state arbitration clauses in bilateral investment treaties (BITs) and the implications of this judgment on the energy sector. Although, according to the Vattenfall case, the Achmea case did not affect the jurisdiction of tribunal under the Energy Charter Treaty, this article reflects the challenges that might be expected in the future.","PeriodicalId":32140,"journal":{"name":"International Comparative Jurisprudence","volume":"4 1","pages":"77-89"},"PeriodicalIF":0.0,"publicationDate":"2018-12-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42579984","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-12-27DOI: 10.13165/J.ICJ.2018.12.008
Taivo Liivak
Fully autonomous and connected vehicles are products combining hardware, software and services. The main advantage of such vehicles is arguably their safety owing to the elimination of human error. Thus, the expectations of the public regarding their safety are particularly high. This article seeks to establish whether Directive 85/374/EEC which governs manufacturers’ liability for damage caused by defective products is fit for the introduction of fully autonomous and connected vehicles. It presents the Directive’s prerequisites for manufacturer liability and examines legal gaps arising from the definition of ‘product’ in the light of the characteristics of fully autonomous and connected vehicles. The article also looks into the defectiveness considerations of such self-driving vehicles under the Directive, analyses the circle of persons who can be treated as manufacturers and the development risk defence which is often associated with the decision-making process of fully autonomous and connected vehicles.
{"title":"LIABILITY OF A MANUFACTURER OF FULLY AUTONOMOUS AND CONNECTED VEHICLES UNDER THE PRODUCT LIABILITY DIRECTIVE","authors":"Taivo Liivak","doi":"10.13165/J.ICJ.2018.12.008","DOIUrl":"https://doi.org/10.13165/J.ICJ.2018.12.008","url":null,"abstract":"Fully autonomous and connected vehicles are products combining hardware, software and services. The main advantage of such vehicles is arguably their safety owing to the elimination of human error. Thus, the expectations of the public regarding their safety are particularly high. This article seeks to establish whether Directive 85/374/EEC which governs manufacturers’ liability for damage caused by defective products is fit for the introduction of fully autonomous and connected vehicles. It presents the Directive’s prerequisites for manufacturer liability and examines legal gaps arising from the definition of ‘product’ in the light of the characteristics of fully autonomous and connected vehicles. The article also looks into the defectiveness considerations of such self-driving vehicles under the Directive, analyses the circle of persons who can be treated as manufacturers and the development risk defence which is often associated with the decision-making process of fully autonomous and connected vehicles.","PeriodicalId":32140,"journal":{"name":"International Comparative Jurisprudence","volume":"4 1","pages":"178-189"},"PeriodicalIF":0.0,"publicationDate":"2018-12-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44761675","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-12-27DOI: 10.13165/J.ICJ.2018.12.002
M. Ferrari
This article analyses the distinctive and connecting aspects of organised crime and terrorism, presenting the criminological elements of these two phenomena and legal aspects involved in fighting them. Although each of them has an independent existential theoretical and legal expression, they are not only interconnected, but also complement each other. The article emphasises that to combat these ills effectively, international and national (including criminal and procedural) legislation must reflect both the individual specifics of organised crime and terrorism and the context of their common features – with the connections between these features understood. Both international and national normative regulation can be more effective in the fight against organised crime and terrorism if their content is directed against these phenomena by perceiving them both in isolation and in recognising their integrity.
{"title":"OVERLAPS BETWEEN ORGANISED CRIME AND TERRORISM","authors":"M. Ferrari","doi":"10.13165/J.ICJ.2018.12.002","DOIUrl":"https://doi.org/10.13165/J.ICJ.2018.12.002","url":null,"abstract":"This article analyses the distinctive and connecting aspects of organised crime and terrorism, presenting the criminological elements of these two phenomena and legal aspects involved in fighting them. Although each of them has an independent existential theoretical and legal expression, they are not only interconnected, but also complement each other. The article emphasises that to combat these ills effectively, international and national (including criminal and procedural) legislation must reflect both the individual specifics of organised crime and terrorism and the context of their common features – with the connections between these features understood. Both international and national normative regulation can be more effective in the fight against organised crime and terrorism if their content is directed against these phenomena by perceiving them both in isolation and in recognising their integrity.","PeriodicalId":32140,"journal":{"name":"International Comparative Jurisprudence","volume":"4 1","pages":"90-96"},"PeriodicalIF":0.0,"publicationDate":"2018-12-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46331366","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-12-27DOI: 10.13165/10.13165/j.icj.2018.12.003
Asta Tūbaitė-Stalauskienė
This article discusses the notion of the post-mortem privacy of the deceased Internet user and focuses on the post-mortem privacy protection aspects in common and continental law systems. It analyses the post-mortem privacy regulation by the legal framework and by contracts, provides information about existing measures to protect Internet user’s data post-mortem and discusses the possibilities to improve them.
{"title":"DATA PROTECTION POST-MORTEM","authors":"Asta Tūbaitė-Stalauskienė","doi":"10.13165/10.13165/j.icj.2018.12.003","DOIUrl":"https://doi.org/10.13165/10.13165/j.icj.2018.12.003","url":null,"abstract":"This article discusses the notion of the post-mortem privacy of the deceased Internet user and focuses on the post-mortem privacy protection aspects in common and continental law systems. It analyses the post-mortem privacy regulation by the legal framework and by contracts, provides information about existing measures to protect Internet user’s data post-mortem and discusses the possibilities to improve them.","PeriodicalId":32140,"journal":{"name":"International Comparative Jurisprudence","volume":"4 1","pages":"97-104"},"PeriodicalIF":0.0,"publicationDate":"2018-12-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45008060","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-12-27DOI: 10.13165/J.ICJ.2018.12.006
A. Hussar
A certain degree of “default” flexibility in residential lease relations is important in guaranteeing the tenant’s right to free movement and facilitating mobility in the labour market; in other words, the tenant should enjoy a right to terminate the tenancy relationship without extensive adverse consequences. With this in mind, I will first elaborate the comparative analysis on the tenant’s right to terminate. Next, I will argue that tenants in Estonia have no real choice to opt for the flexibility needed without a trade-off in terms of stability, and why asymmetry of the parties’ right to terminate is recommendable. Finally, I propose considering Europe-wide best practices and the local socioeconomic environment, with draft amendments to Estonian tenancy law in order to meet needs.
{"title":"FLEXIBILITY OF RESIDENTIAL LEASE RELATIONS FROM THE TENANT’S PERSPECTIVE: ESTONIAN LAW IN A COMPARATIVE CONTEXT","authors":"A. Hussar","doi":"10.13165/J.ICJ.2018.12.006","DOIUrl":"https://doi.org/10.13165/J.ICJ.2018.12.006","url":null,"abstract":"A certain degree of “default” flexibility in residential lease relations is important in guaranteeing the tenant’s right to free movement and facilitating mobility in the labour market; in other words, the tenant should enjoy a right to terminate the tenancy relationship without extensive adverse consequences. With this in mind, I will first elaborate the comparative analysis on the tenant’s right to terminate. Next, I will argue that tenants in Estonia have no real choice to opt for the flexibility needed without a trade-off in terms of stability, and why asymmetry of the parties’ right to terminate is recommendable. Finally, I propose considering Europe-wide best practices and the local socioeconomic environment, with draft amendments to Estonian tenancy law in order to meet needs.","PeriodicalId":32140,"journal":{"name":"International Comparative Jurisprudence","volume":"4 1","pages":"149-162"},"PeriodicalIF":0.0,"publicationDate":"2018-12-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41928529","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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