Review of Central and East European Law最新文献

The standard terms and conditions that are appended to cross-border commercial contracts frequently contain jurisdiction clauses. Different legal systems have divergent rules and practices regarding these clauses, however, which may affect their validity and hence undermine certainty and predictability in international commerce. Thanks to its geostrategic location, Turkey is an important trading partner for some of the leading global trade players, particularly the European Union. Hence, companies doing business in Turkey may frequently include jurisdiction clauses in favour of a foreign court in standard terms and conditions. This paper examines the validity of such jurisdiction clauses from a Turkish legal perspective, with examples from case law.

This paper examines the challenges associated with applying copyright laws that are limited to specific regions in today’s interconnected world. It also explores how private international law regulations come into play when addressing conflicts arising from cross-border copyright disputes. The primary focus of this article is on key issues like initial ownership and the transfer of copyright as governed by private international law in the Czech and Slovak Republics. Additionally, it discusses the influence of legal doctrines from Switzerland and Germany on the legal systems of these countries, particularly their preference for the lex loci protectionis rule. Furthermore, the authors consider how private international law has evolved in the Czech and Slovak Republics when addressing cross-border copyright disputes. Both countries have adopted the lex loci protectionis connecting factor for copyright matters and address the concept of the initial copyright owner in a way that closely resembles the solution provided in Article 3:201(2) of the clip Principles.

This article aims to evaluate modifications to the system of measures of extraordinary appeal in Polish criminal proceedings that have occurred over the past few years from the point of view of legal certainty as the core element of the rule of law. The paper provides answers to the following questions: Do the newly introduced measures of challenge: a complaint against the “cassatory” judgment of an appellate court adopted in 2016 and an extraordinary complaint introduced in 2018, along with the “traditional” extraordinary measures of challenge: a cassation appeal and a motion for the reopening of proceedings, form a coherent model of mutually complementary measures? Has the introduction of the new measures of challenge contributed to quicker proceedings, that is, expedited the final decision in criminal cases while maintaining the standard of substantive justice? The analysis of the legal basis and practice of applying the two measures brought the authors to the conclusion that the first one (the complaint against a cassatory judgment of the appellate court) may contribute to obtaining a final judgment in the case within a reasonable time. Moreover, it does not compromise the coherence of the system of appeal measures in Polish criminal proceedings. On the other hand, the second remedy – an extraordinary complaint generates a long-term condition of legal uncertainty and undermines the principle of legal certainty, a key element of which is the institution of the finality of judgment.

Transparency has been touted as a cure for facilitating the independence of candidates selected by the States for international tribunals and, therefore, for increasing the legitimacy of these tribunals. Based on a case study of the judicial selection procedure of the ECtHR judge in Georgia, this article suggests that emphasizing the potential of transparency and publicity of the national selection process is misleading because even the drastically enhanced transparency of the process is not a cure for its higher legitimation. By connecting the scholarship on transparency of the selection process for the judges of international tribunals with the literature on informal governance networks, this article cautions against the excessive focus on transparency at the expense of a deeper understanding of the local context in which the selection and nomination processes occur. Drawing on informality studies in the former Soviet Union, the article aspires to initiate a discussion on the policy reform steps pertaining to the operations of informal governance networks in judicial selection processes. This article presents a more realistic and restricted conception of transparency – transparency specialis – which we advocate, will be useful in designing the national judicial selection process. Transparency specialis is an understanding that transparency of the selection process is useful; however, where informal governance is prevalent, transparency solely will not result in a fair and impartial process without the relevant and all-encompassing judiciary reforms.

This article engages with Ros Dixon’s theory of “Responsive Judicial Review” (oup, 2023). It argues that Central and Eastern European jurisdictions with specialized constitutional courts face two major obstacles to engage fully in responsive judicial review – legal formalism and the very fact that constitutional review is centralized into one institution, which discourages pluralistic debates about the constitution and limits the room for dialogue between the constitutional court and other actors. Even the Czech Constitutional Court that meets all three Dixon’s preconditions for courts’ ability to engage in responsive judicial review (judicial independence, political support, and remedial power) and is probably the most Elyan constitutional court in cee faces several obstacles to responsive judging. As a result, its responsiveness has been selective. Nevertheless, although full-fledged responsive judicial review is difficult to achieve in cee countries in the short term, their constitutional courts can, as the Czech Constitutional Court shows, exercise responsive judicial review “light”. We argue that such “light version” of responsive judicial review would still be a great improvement and we provide several proposals how to increase the likelihood that it happens.

The Russian invasion of Ukraine has opened a debate over how to ensure accountability for the supreme international crime, namely the crime of aggression. Prosecuting the crime of aggression related to Russia’s attack on Ukraine is hampered by the fact that neither country, Russia nor Ukraine, are Member States of the Rome Statute, which established the International Criminal Court (icc) and transferred the crime to its jurisdiction. As a result, this article will examine how and in what ways the crime of aggression may be prosecuted in the context of the Russo-Ukrainian war, with a particular emphasis on prosecuting the crime through the icc, domestic courts, or by establishing an ad hoc tribunal.

Based on an analysis of the legal aspects of prosecuting the crime of aggression, the article suggests that currently, the most appropriate approach to prosecuting the crime in the context of the Russo-Ukrainian war is to establish an international ad hoc tribunal, either through a treaty signed by the United Nations and Ukraine on the basis of a referral from the United Nations General Assembly and the United Nations Secretary-General or a multilateral treaty between Ukraine and other states supported by the United Nations.

This paper is provoked by Rosalind Dixon's book on Responsible Judicial Review and the arguments expressed by the author. The paper deals with the independence of the Constitutional Court in Serbia, as the most important requirement for a responsive judicial review. The main premise is that because of the appointment of judges, almost unknown in professional circles, and their servile relationship with other branches of government, the Constitutional Court acts as a guardian of controversial executive policies. The author briefly describes the origins of the Serbian Constitutional Court and the level of its independence. Some relevant cases are presented that demonstrate the existence of several strategies applied by judges which support the thesis that judges allow political and other factors to influence their decisions. The author also presents human rights cases that illustrate a very formalistic approach of the Court that influences its own legitimacy and lack of support.

An éminence grise of human rights – the principle of accountability – has been continuously advancing its normative presence in international law and rights discourses in the last couple of decades. Its transformative promises, on the other side, are hindered by the conceptual dubiety rooted, inter alia, in the non-translatability of the concept to many world languages. The current article attempts to examine how universal aspirations about the principle are appropriated in local contexts of the Central Asian region. In the outset, the research scrutinizes theoretical perplexities around the term and argues for the (obscured) role of law in these discussions. Then, drawing on doctrinal and empirical research in Central Asia, it converses the ways accountability is translated, engaged, and valued as the idea. Findings reveal the heterogeneity of approaches to accountability, and the reiterative relations between the word and the concept, informed by the region’s historical past, political regimes, one’s language and education. The article exposes often omitted pitfalls of the existing multilingual setting of international law and its institutions, which undermine the communicative value of local languages in the region.

The article analyses how wide and general conclusions are formulated in case law, using a sample of decisions of the Czech Constitutional Court from 1998 and 2018. The article shows tendencies towards institutionalisation of maximalist decision-making in the form of formulating general principles as starting points for decisions made in individual cases. Another important observation is connected with the changing form of maximalist judicial decisions, shifting from maximalism characterised by depth of the reasoning towards maximalism manifested in the width of impacts of an individual case, whereby the Czech Constitutional Court has been strengthening its position vis-à-vis other branches of government. In the conclusion of the article, it is emphasised that maximalism, in terms of separation of powers, rather represents an anti-systemic element in the laws of countries with civil-law legal system, such as the Czech Republic.

A response to Rosalind Dixon’s Responsive Judicial Review (Oxford University Press 2023) assessing her theory’s prospects and caveats in the Romanian constitutional context. The piece analyses recent case law from the Romanian Constitutional Court and highlights three important shortcomings that limit the applicability of Dixon’s framework: the tendency toward formalism in constitutional interpretation, an impoverished rights review culture, and the persistent conflictual positioning of the Constitutional Court vis-à-vis other constitutional actors. The article ends by speculating on developments that may yet render responsive judicial review more of a reality in Romanian constitutionalism than present conditions may allow.