The aim of this article is to present a comparative perspective of the doctrine of piercing the corporate veil in three major jurisdictions: Germany, the United States, and England in the light of the appropriate legal rules and recent case law. The concept of piercing the veil is still undeveloped in Poland, yet it has already drawn some attention from both the judiciary and legal scholars. It will be argued that despite the fact that the three aforementioned jurisdictions belong to different legal traditions, both the cases in which courts decided to pierce the veil and the nature of veil-piercing are similar among the jurisdictions. However, the study shows growing hostility to the doctrine, especially in continental jurisdictions. The arguments for restricting the scope of veil-piercing formulated under the laws of Germany, United States, and England should be taken into consideration in Polish jurisprudence as well.
{"title":"Piercing the Corporate Veil – A Common Pattern?","authors":"Paweł Słup","doi":"10.12775/CLR.2018.011","DOIUrl":"https://doi.org/10.12775/CLR.2018.011","url":null,"abstract":"The aim of this article is to present a comparative perspective of the doctrine of piercing the corporate veil in three major jurisdictions: Germany, the United States, and England in the light of the appropriate legal rules and recent case law. The concept of piercing the veil is still undeveloped in Poland, yet it has already drawn some attention from both the judiciary and legal scholars. It will be argued that despite the fact that the three aforementioned jurisdictions belong to different legal traditions, both the cases in which courts decided to pierce the veil and the nature of veil-piercing are similar among the jurisdictions. However, the study shows growing hostility to the doctrine, especially in continental jurisdictions. The arguments for restricting the scope of veil-piercing formulated under the laws of Germany, United States, and England should be taken into consideration in Polish jurisprudence as well.","PeriodicalId":36604,"journal":{"name":"Comparative Law Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-02-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47855683","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}
{"title":"Judgment of the Court (Second Chamber) of 27 September 2017 in Case C 24/16 in the Proceedings Nintendo Co. Ltd v. Bigben Interactive GMBH, Bigben Interactive SA","authors":"Marek Świerczyński, Bartłomiej Oręziak","doi":"10.12775/clr.2018.013","DOIUrl":"https://doi.org/10.12775/clr.2018.013","url":null,"abstract":"","PeriodicalId":36604,"journal":{"name":"Comparative Law Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-02-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45732672","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}
Legal transplanting entails the adoption in one country of (part of) the law of another country. Some developing countries have changed their law of corporate insolvency, implementing legal institutions such as corporate rescue procedures. Comparative law scholars are divided on whether legal transplantation is possible. According to Alan Watson, legal transplantation is easy, whereas Pierre Legrand is of the opinion that it is impossible. Otto Kahn-Freund adopts a more nuanced stance. All three however agree that culture has an influence on the success of legal transplants. Religion, as a component of culture, makes it more difficult to transplant certain legal institutions. This does not mean that it is impossible to adopt one corporate rescue regime in all developing countries. It does however mean that the specific religions can have an influence on the way the new law will be used.
{"title":"Corporate Rescue Transplants and Religious Influences in Developing Countries","authors":"Walter Nijnens","doi":"10.12775/CLR.2018.008","DOIUrl":"https://doi.org/10.12775/CLR.2018.008","url":null,"abstract":"Legal transplanting entails the adoption in one country of (part of) the law of another country. Some developing countries have changed their law of corporate insolvency, implementing legal institutions such as corporate rescue procedures. Comparative law scholars are divided on whether legal transplantation is possible. According to Alan Watson, legal transplantation is easy, whereas Pierre Legrand is of the opinion that it is impossible. Otto Kahn-Freund adopts a more nuanced stance. All three however agree that culture has an influence on the success of legal transplants. Religion, as a component of culture, makes it more difficult to transplant certain legal institutions. This does not mean that it is impossible to adopt one corporate rescue regime in all developing countries. It does however mean that the specific religions can have an influence on the way the new law will be used.","PeriodicalId":36604,"journal":{"name":"Comparative Law Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-02-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42154001","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}
This paper examines language rights in the light of international law instruments. The paper contends that although international law provides for a number of language rights only very few of them can be regarded as universal human rights. First, the paper describes the purpose of language rights protection. Second, it analyses the scope of language rights protection and distinguishes between individual and collective language rights. Third, three basic categories of individual rights addressing language questions are analysed, i.e. procedural linguistic human rights, freedom of expression and nondiscrimination on the grounds of language. Next, language rights of persons belonging to minorities are examined. Finally, the paper concludes that under international law language rights which are universal human rights include linguistic aspects of the right to a fair trial and the right to liberty and security as well as the right of non-discrimination on the grounds of language use in private sphere. The language rights protected otherwise do not fall within the category of human rights and their protection is not universal.
{"title":"Language Rights in the Light of International Law","authors":"Aneta Skorupa-Wulczyńska","doi":"10.12775/CLR.2018.003","DOIUrl":"https://doi.org/10.12775/CLR.2018.003","url":null,"abstract":"This paper examines language rights in the light of international law instruments. The paper contends that although international law provides for a number of language rights only very few of them can be regarded as universal human rights. First, the paper describes the purpose of language rights protection. Second, it analyses the scope of language rights protection and distinguishes between individual and collective language rights. Third, three basic categories of individual rights addressing language questions are analysed, i.e. procedural linguistic human rights, freedom of expression and nondiscrimination on the grounds of language. Next, language rights of persons belonging to minorities are examined. Finally, the paper concludes that under international law language rights which are universal human rights include linguistic aspects of the right to a fair trial and the right to liberty and security as well as the right of non-discrimination on the grounds of language use in private sphere. The language rights protected otherwise do not fall within the category of human rights and their protection is not universal.","PeriodicalId":36604,"journal":{"name":"Comparative Law Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-02-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49368937","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}
This article addresses one of the challenges faced by judges of the International Criminal Court, namely the interpretation of applicable legal provisions. The incompleteness of the Rome Statute, uncertainty as to the binding nature of relevant regulations, numerous general clauses – these are just some of the difficulties observed in the interpretation process. The aim of this short publication is to show the directives and types of interpretation used by the International Criminal Court, with particular reference to factors determining the process of interpretation. This article includes, inter alia, the analysis of relevant regulations, especially the Rome Statute and the Vienna Convention on the Law of Treaties, as well as the case law of the International Criminal Court. Considerations presented in this work are aimed at showing the specific character of interpretation conducted by the International Criminal Court.
{"title":"The Complexities of Law Interpretation with Regard to the International Criminal Court","authors":"Sonia Głogowska","doi":"10.12775/CLR.2018.006","DOIUrl":"https://doi.org/10.12775/CLR.2018.006","url":null,"abstract":"This article addresses one of the challenges faced by judges of the International Criminal Court, namely the interpretation of applicable legal provisions. The incompleteness of the Rome Statute, uncertainty as to the binding nature of relevant regulations, numerous general clauses – these are just some of the difficulties observed in the interpretation process. The aim of this short publication is to show the directives and types of interpretation used by the International Criminal Court, with particular reference to factors determining the process of interpretation. This article includes, inter alia, the analysis of relevant regulations, especially the Rome Statute and the Vienna Convention on the Law of Treaties, as well as the case law of the International Criminal Court. Considerations presented in this work are aimed at showing the specific character of interpretation conducted by the International Criminal Court.","PeriodicalId":36604,"journal":{"name":"Comparative Law Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-02-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44539793","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}
The Portuguese legislator has provided, for the first time, in the Portuguese legal system, means of obtaining evidence specific for Cybercrime in Law no. 109/2009, of September 15, in which Framework Decision no. 2005/222/JHA, of the Council of February 24, concerning attacks against information systems and the Convention on Cybercrime of the Council of Europe were transposed to the Portuguese legal system. While the legislator’s options are considered to be mostly correct, there are some critical issues. In the present Article, the legal regime of these means of obtaining of evidence is critically analyzed.
{"title":"The Means of Obtaining Evidence Provided by the Portuguese Cybercrime Law (Law no. 109/2009 of 15 September 2009)","authors":"D. Nunes","doi":"10.12775/CLR.2018.010","DOIUrl":"https://doi.org/10.12775/CLR.2018.010","url":null,"abstract":"The Portuguese legislator has provided, for the first time, in the Portuguese legal system, means of obtaining evidence specific for Cybercrime in Law no. 109/2009, of September 15, in which Framework Decision no. 2005/222/JHA, of the Council of February 24, concerning attacks against information systems and the Convention on Cybercrime of the Council of Europe were transposed to the Portuguese legal system. While the legislator’s options are considered to be mostly correct, there are some critical issues. In the present Article, the legal regime of these means of obtaining of evidence is critically analyzed.","PeriodicalId":36604,"journal":{"name":"Comparative Law Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-02-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42667410","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}
This paper starts its analysis from Legislative Decree number 146/2007 which incorporated Directive 2005/29/EC into the Italian Consumer Code. This Directive is about unfair commercial practices, useful in illustrating the phenomenon undertaken by unscrupulous businessmen against consumers. Ten years after the enforcement and entry of this legislation into Italian law, the balance is still not positive because consumers do not seem to be totally protected from the implementation of those devious entrepreneurial strategies designed to mislead the consumer from taking an informed decision of a commercial nature. More specifically, in my study I analyze the lack of legislation, above all on unfair trade practices classified as spam and fake reviews (otherwise known as ‘opinion spam’) against which Italian private law (different from other legal systems) is totally insufficient to protect consumers.
{"title":"Unfair Commercial Practices, Spam and Fake Online Reviews. The Italian Perspective and Comparative Profiles","authors":"B. Blasco","doi":"10.12775/CLR.2018.004","DOIUrl":"https://doi.org/10.12775/CLR.2018.004","url":null,"abstract":"This paper starts its analysis from Legislative Decree number 146/2007 which incorporated Directive 2005/29/EC into the Italian Consumer Code. This Directive is about unfair commercial practices, useful in illustrating the phenomenon undertaken by unscrupulous businessmen against consumers. Ten years after the enforcement and entry of this legislation into Italian law, the balance is still not positive because consumers do not seem to be totally protected from the implementation of those devious entrepreneurial strategies designed to mislead the consumer from taking an informed decision of a commercial nature. More specifically, in my study I analyze the lack of legislation, above all on unfair trade practices classified as spam and fake reviews (otherwise known as ‘opinion spam’) against which Italian private law (different from other legal systems) is totally insufficient to protect consumers.","PeriodicalId":36604,"journal":{"name":"Comparative Law Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-02-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44538584","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}
Subsistence minimum guaranteed to each individual by the public authorities may be perceived as a human right under the constitutional law. That right becomes even more important when the ability to question social and economic rights is limited. That was the case in the Polish constitutional system, among others. Because of the restrictions on the ability to question ESC-rights, the Polish Constitutional Tribunal found “subsistence minimum” as a special type of constitutional value inferred from human dignity which is guaranteed to every person under the Constitution. While giving its judgment, the Polish Constitutional Tribunal made reference to the case law of the Federal Constitutional Court of Germany which inferred “The fundamental right to guarantee a subsistence minimum that is in line with human dignity” from the German Basic Law. That right is of special importance for individuals who live in extreme poverty.
{"title":"The Right to Subsistence Minimum and Its Role in the Protection of People Living in Extreme Poverty – the Polish Experience","authors":"Adam Ploszka","doi":"10.12775/CLR.2018.009","DOIUrl":"https://doi.org/10.12775/CLR.2018.009","url":null,"abstract":"Subsistence minimum guaranteed to each individual by the public authorities may be perceived as a human right under the constitutional law. That right becomes even more important when the ability to question social and economic rights is limited. That was the case in the Polish constitutional system, among others. Because of the restrictions on the ability to question ESC-rights, the Polish Constitutional Tribunal found “subsistence minimum” as a special type of constitutional value inferred from human dignity which is guaranteed to every person under the Constitution. While giving its judgment, the Polish Constitutional Tribunal made reference to the case law of the Federal Constitutional Court of Germany which inferred “The fundamental right to guarantee a subsistence minimum that is in line with human dignity” from the German Basic Law. That right is of special importance for individuals who live in extreme poverty.","PeriodicalId":36604,"journal":{"name":"Comparative Law Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-02-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48991789","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}
This Article analyzes the issue of hate speech limitations under the scope of both the Brandenburg Test and the Greek anti-racist Law. Although the Brandenburg doctrine has been criticized, especially with regard to its being applied to the phenomena of racism or xenophobia, its standards can also be detected in the Greek anti-racist Law, which has been recently amended. This Article examines the magic words “imminence”, “public order”, and “incitement to actions” and concludes that mere utterance of racist rhetoric is not punishable. Greek jurisprudence seems to be in line with the Brandenburg principles, tolerating inflammatory words that are harmless to social harmony and peace. This Article further suggests that, for public order to be endangered by hate speech, an in concreto analysis of the surrounding circumstances is necessary. In sum, Brandenburg helps Greek legal thought to understand the dynamic of the disturbance of public order through the “clear and present danger” perspective, while the Greek anti-racist Law offers an example of when and how hate speech may be deemed as an incitement not only to lawless action, but also to actions of hatred and discrimination.
{"title":"Is Brandenburg’s Spirit Still Alive? A Perspective of the Greek Anti-Racist Law","authors":"Apostolos F. Manthos","doi":"10.12775/CLR.2018.002","DOIUrl":"https://doi.org/10.12775/CLR.2018.002","url":null,"abstract":"This Article analyzes the issue of hate speech limitations under the scope of both the Brandenburg Test and the Greek anti-racist Law. Although the Brandenburg doctrine has been criticized, especially with regard to its being applied to the phenomena of racism or xenophobia, its standards can also be detected in the Greek anti-racist Law, which has been recently amended. This Article examines the magic words “imminence”, “public order”, and “incitement to actions” and concludes that mere utterance of racist rhetoric is not punishable. Greek jurisprudence seems to be in line with the Brandenburg principles, tolerating inflammatory words that are harmless to social harmony and peace. This Article further suggests that, for public order to be endangered by hate speech, an in concreto analysis of the surrounding circumstances is necessary. In sum, Brandenburg helps Greek legal thought to understand the dynamic of the disturbance of public order through the “clear and present danger” perspective, while the Greek anti-racist Law offers an example of when and how hate speech may be deemed as an incitement not only to lawless action, but also to actions of hatred and discrimination.","PeriodicalId":36604,"journal":{"name":"Comparative Law Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-02-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45443077","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}
In the Italian legal system a company (societa) is the collective exercise of an enterprise. From an organisational point of view, companies may be divided between: (1) companies of persons and (2) share companies. Share companies may have either a profit motive or an object of mutual benefit. Share companies with a profit motive are, inter alia, the Joint Stock Companies. This is both: the principal type of company and the most appropriate company structure for large enterprises which involve a considerable capital and the assumption of a notable risk. The peculiar characteristic of this type of company is that the relationship between the company and its shareholders is impersonal and anonymous. The three distinguishing features of the SpA are: first, the liability of the shareholders is limited to their contributions; second, the participation of the shareholder in the company is represented by shares of equal nominal value; and finally, the company must have a minimum capital.
{"title":"Joint Stock Companies in the Italian Legal System","authors":"C. Bruni","doi":"10.12775/CLR.2018.005","DOIUrl":"https://doi.org/10.12775/CLR.2018.005","url":null,"abstract":"In the Italian legal system a company (societa) is the collective exercise of an enterprise. From an organisational point of view, companies may be divided between: (1) companies of persons and (2) share companies. Share companies may have either a profit motive or an object of mutual benefit. Share companies with a profit motive are, inter alia, the Joint Stock Companies. This is both: the principal type of company and the most appropriate company structure for large enterprises which involve a considerable capital and the assumption of a notable risk. The peculiar characteristic of this type of company is that the relationship between the company and its shareholders is impersonal and anonymous. The three distinguishing features of the SpA are: first, the liability of the shareholders is limited to their contributions; second, the participation of the shareholder in the company is represented by shares of equal nominal value; and finally, the company must have a minimum capital.","PeriodicalId":36604,"journal":{"name":"Comparative Law Review","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-02-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41286716","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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