International Comparative Jurisprudence最新文献

The ‘Peace versus justice’ debate has been a central theme when analyzing the politics of international criminal justice. The role of the permanent International Criminal Court may be portrayed as an obstacle to peace processes but it may as well facilitate those processes. The present paper, by juxtaposing sometimes diverging views, argues that a more nuanced approach is needed for properly assessing the impact of the ICC. In fact, the Court may play neither role exclusively. Instead, there are different mechanisms enshrined in the Rome Statute, for accommodating the demands of peace and justice. They are addressed within the present study.

In international criminal law, as well as in national penal systems, a defendant may be found guilty of more than one crime as a result of the same act. In that case, the question arises as to whether this act, while breaching several criminal provisions, in reality violates only one. The approach followed in case law is so formal as to provide no limiting effects to cumulative convictions. Plausibly, this is a consequence of a line of thought that emerged in the aftermath of the Second World War and advances a primarily ‘retributive’ idea of punishment for serious international crimes, i.e. a kind of idea where there is no room for the perpetrator’s rehabilitation. In this author’s view, bearing in mind the dramatic development of human rights’ protection over the years, such an idea should be revised. And this in order to favor a more substantive approach to the matter of cumulation.

This article analyses the European Union competition law enforcement system and its developments. Data shows that the current European Union competition law enforcement system is ineffective. The systematic analysis by the author of the United States competition law enforcement system shows that an opt-out class action mechanism for competition law enforcement established in the United States enables effective enforcement of competition law. Whereas, there is no uniform collective redress system across the European Union. The national regimes of European Union Member States regarding collective redress are diverse. These considerations implies the need for a uniform collective redress system across the European Union.

The present article comments on case Vasiliauskas vs. Lithuania in which European Court of Human Rights has found Lithuania in breach of European Convention on Human Rights, Article 7. In this case Lithuania retroactively applied broadened definition of genocide embedded in the national law. Such definition was created with the aim to prosecute persons that carried out soviet repressions in Soviet Union occupied Lithuania after World War Two. However, the ECHR judgement was adopted only by minimal margin, and the dissenting opinions were numerous with criticism upon majority that it chose too formal way and failed to address the justice that soviet repression victims are still craving. Nevertheless, the majority decision could not be easily dismissed neither by Lithuania, nor by any other country that is facing the same historical trend therefore it is necessary to consider what steps Lithuania shall take and how to make it in line with Vasiliauskas decision.

Law, as an interdisciplinary concept, has a multidimensional character. It does not simply consist of a set of rules of conduct inherent in human nature and binding upon human society. More than a litany of legal principles and related concepts (e.g., rights, justice, liberty, punishment), laws also consist of a combination of historical, critical, postmodern, socio-political, inter alia dimensions. As such, in various legal systems, they can do any or a few, but not limited to the following: confer powers, define relations, explain or clarify, determine sanctions, permit or forbid human activities, etc. In this paper, using an eclectic theoretical approach to jurisprudence,¹ I argue that no legal theory is ever complete without an adequate consideration of the multifacetedness of human laws, specifically when it comes to legality and morality, which may or may not be influenced by each other, but also by individuals, society, and the world. For one, law and morality have similar root in philosophy. They share some similarities and differences as their detailed treatment of what is or ought to be legal and moral sometimes overlap or clashes. Nevertheless, in various philosophical contexts, everything is related to everything else. Morality and law may be systematically and conceptually related or not despite their similarities and distinctiveness. As such, my argumentative research, or more aptly stated, discussion paper starts with a detailed discussion of the various legal theories’ focal points until a comprehensive analysis, interpretation, application, and synthesis of what law is, should be and ought to be is reached. Hence, the delimitation of my article is around various major legal theories and how an evolving conception of law and morality, not to mention other legal aspects, is presented for an implicit understanding of the present world and imminent future.

One of the key postulates of modern law of armed conflict or international humanitarian law (IHL) is that the choice of weapons by fighting parties is not unlimited. Thus, in order to ensure excessive harm is not inflicted, certain weapons are prohibited or their use is restricted. Although every case is quite unique, limitations related to weapons attest to the fact that effects of ordinary use of those weapons were deemed incompatible with the requirements of IHL. This article examines the potential for regulation of lethal autonomous weapons, while at the same time drawing upon lessons from the past. The analysis covers various ways how IHL restricts the choice of means of warfare – formal regulation, application of customary rules and principles to a weapon, and legal weapons review – all of which offer valuable insights on how to accommodate rising legal uncertainty over autonomous weapons. In this respect, the ‘headliner’ of World War II, the nuclear weapon, serves as an exceptional example that some weapons bring about unparalleled regulatory challenges. Like atom bomb, lethal autonomous weapons mark revolutionary changes in warfare. Yet, this article is to confirm applicability and adaptability of IHL to any new weapon, including an autonomous one.

Emotions play a very important role in the search for dispute resolution, but very often are neither understood nor effectively addressed by the parties to the dispute, also not properly controlled and managed by the professionals that are helping the parties to reach peaceful dispute resolution. The effective negotiator or mediator must take into account not only the economic, political and physical aspects of the process, but also the emotional tenor of themselves as well as that of all of the parties.

This paper has three objectives: to define emotions and their role in solving legal disputes by the means of negotiation and mediation processes; to outline main elements of the process of developing emotional intelligence as they play out in the mediation and negotiation processes; and to explore some of the mechanisms for addressing and optimizing the emotional climate in negotiation and mediation processes. The object of the research – emotions in the processes of legal dispute resolution – negotiation and mediation.

The research is composed of introduction, three parts and conclusions. Introduction provides a brief overview of the object of that research and its goals, part one describes emotions and their roles in negotiation and mediation processes, in part two four elements to develop emotional intelligence are overviewed and in the third part analysis of mechanisms for addressing and optimizing the emotional climate of negotiations and mediation are presented. The conclusion gives main ideas of the assignment of that work in brief.

Article 36 of the European Convention on Human Rights (ECHR) enables third parties to intervene in cases before the European Court of Human Rights (ECtHR). Access to justice is a very important principle which has been developed both in international law and in the context of the ECHR. There is, however, no clear answer regarding the question of how legal aid is accessible for third persons who are affected by proceedings without being a party to them. Taking the example of German law introducing Legal Aid for affected third parties, the authors ask if such a national act is necessary from the perspective of the access to justice. The law described here adds an additional national layer to internationalized proceedings and the authors seek to answer the question how helpful the enacted law could be in practice. In light of recent controversies concerning permits for major infrastructure projects in Germany the question of legal aid is also of importance for corporate applicants before the European Court of Human Rights because affected third persons who may be eligible for legal aid under the new law can also be those who had, in Administrative Law courts, challenged permits issued to the person who then is the applicant in proceedings before the European Court of Human Rights. The authors also look at the right to legal aid for affected third parties under the European Union’s Charter of Fundamental Rights and the potential divergence between the Charter and the European Convention of Human Rights against the backdrop of the potential accession of the European Union to the Convention and conclude that, notwithstanding some small shortcomings, the new law is necessary and should be sufficiently effective in assistance of third persons intervening before the ECHR.

Unfair Commercial Practices Directive remains one of the most ambitious acts of secondary legislation adopted in the field of consumer protection over the past decade. This legal instrument seeks to establish a common European understanding of “unfairness” in business-to-consumer legal relations. Hereby Directive introduced a comprehensive regulatory regime applied to all types of commercial activities that can influence the economic behavior of consumers, covering any business-to-consumer commercial practice before, during and after a transaction, thus including marketing, negotiation, sales practices and after-sales conduct. Unfair Commercial Practices Directive into Lithuanian legal system was transposed by adopting a completely new legal act – Law on Prohibition of Unfair Business-to-Consumer Commercial Practices of the Republic of Lithuania. The implementation of the Unfair Commercial Practices Directive in Lithuania led to a split-up between misleading business-to-consumer commercial practices and misleading business-to-business advertising regulation regimes. Implementing act among other rules introduced into the national legal system provisions on the prohibition of misleading commercial practices, ensuring that consumers are not misled, thus enabling them to make informed and reasonable choices. The purpose of this article is to examine the norms of national act, implementing the prohibition of misleading commercial practices into the national legal system in the context of implementing provisions of the other Member States and to reveal core national regulation and application problems. Also, having in mind that in the text of the Directive a distinction between misleading actions and misleading omissions is made, it is analyzed whether the clear line between the application of these rules is made in legal practice. In conclusion authors formulate key recommendations for consumer protection institutions and courts, applying the rules on misleading commercial practices.

The authors explore different models of transfer of industrial property on a comparative basis. The article demonstrates that these models differ on a country level and several models may be in use in one legal system. The authors analyze strengths and weaknesses and legal implications of these models in the three Baltic States both at the regulatory level and at the practical level through case studies. The authors conclude that would be preferable to use the model under which the register is vested with negative publicity and the transfer of ownership of industrial property is not made dependent on its recordation.