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Zgrabljić Rotar, Dora. „OVERRIDING MANDATORY PROVISIONS IN CROATIAN PRIVATE INTERNATIONAL LAW“. Pravni vjesnik 37, Nr. 3-4 (Dezember 2021): 81–100. http://dx.doi.org/10.25234/pv/13256.
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Overriding mandatory provisions are mandatory provisions that are applicable in situations with an international element. The author analyses overriding mandatory norms in the European private international law and in the Croatian national private international law. The definition of such norms provided in the 2017 Croatian Private International Law Act is almost a verbatim copy of the definition provided in the Rome I Regulation on the law applicable to contractual obligations. The 1982 Croatian Private International Law Act did not provide for a definition of overriding mandatory norms but it was uniformly accepted in the scholarly interpretations that those types of mandatory norms were accepted by the Croatian private international law system. Moreover, the 1982 PIL Act included a substantive family law provision, which was, in essence, an overriding mandatory provision. However, Croatian courts and practitioners have been reluctant to refer explicitly to an applied norm as an overriding mandatory one. The reasons behind that might be that that the courts were better acquainted with the public policy exception, since public policy was explicitly mentioned in the 1982 PIL Act, as well as in some other legal acts. In addition, the legislator does not explicitly note that a provision is an overriding mandatory one in the provision itself, which leads to the outcome that the courts and other practitioners are burdened with a complex task of interpretation of a provision they think might be an overriding mandatory one. The author aims at providing guidelines to facilitate that task.
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Bisping, Christopher. „THE COMMON EUROPEAN SALES LAW, CONSUMER PROTECTION AND OVERRIDING MANDATORY PROVISIONS IN PRIVATE INTERNATIONAL LAW“. International and Comparative Law Quarterly 62, Nr. 2 (April 2013): 463–83. http://dx.doi.org/10.1017/s0020589313000055.
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AbstractThis article analyses the relationship of the proposed Common European Sales Law (CESL) and the rules on mandatory and overriding provisions in private international law. The author argues that the CESL will not achieve its stated aim of taking precedence over these provisions of national law and therefore not lead to an increase in cross-border trade. It is pointed out how slight changes in drafting can overcome the collision with mandatory provisions. The clash with overriding mandatory provisions, the author argues, should be taken as an opportunity to rethink the definition of these provisions.
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Lee, Phil-Bok. „International Transaction of Cultural Heritage and Overriding Mandatory Provisions - Focused on the Overriding Mandatory Provisions of lex originis -“. Korea Private International Law Journal 27, Nr. 1 (30.06.2021): 119–71. http://dx.doi.org/10.38131/kpilj.2021.6.27.1.119.
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Wowerka, Arkadiusz. „Obce przepisy wymuszające swoje zastosowanie. Glosa do wyroku Trybunału Sprawiedliwości Unii Europejskiej z dnia 18 października 2016 r. w sprawie C-135/15 Republika Grecji przeciwko Grigoriosowi Nikiforidisowi“. Problemy Prawa Prywatnego Międzynarodowego 25 (31.12.2019): 91–106. http://dx.doi.org/10.31261/pppm.2019.25.05.
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This commentary examines the judgement of the CJEU of 18 October 2016 in case C-135/15 Republik Griechenland v. Grigorios Nikiforidis. The judgement in question concerns the issue of treatment of foreign overriding mandatory provisions under the Article 9(3) of Regulation No 593/2008. This topic is the subject to a great deal of controversy and academic discussion. The ECJ concluded that the mentioned provision must be interpreted as precluding overriding mandatory provisions other than those of the State of the forum or of the State where the obligations arising out of the contract have to be or have been performed from being applied, as legal rules, by the court of the forum, but as not precluding it from taking such other overriding mandatory provisions into account as matters of fact in so far as this is provided for by the national law that is applicable to the contract pursuant to the Regulation. This interpretation is not affected by the principle of sincere cooperation laid down in Article 4(3) TEU. In this respect the judgement of CJEU brings significant clarification on the question, whether a court of the forum can have regard to foreign overriding mandatory provisions, which do not belong to the legal system of the country of performance of the contract on the level of the applicable substantive law. However, there are still questions arising under Article 9(3) of Rome I Regulation, which need to be clarified.
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Cordero Álvarez, Clara Isabel. „Incidencia de las normas imperativas en los contratos internacionales: especial referencia a las normas de terceros estados desde una aproximación europea = Overriding mandatory provisions in international contracts: a special reference to foreign overriding mandatory provisions from a European approach“. CUADERNOS DE DERECHO TRANSNACIONAL 9, Nr. 2 (05.10.2017): 174. http://dx.doi.org/10.20318/cdt.2017.3870.
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Resumen: Este trabajo analiza algunas cuestiones que plantea la aplicación de las leyes de policía en el ámbito del Derecho contractual de la UE. Por cuanto se refiere a las normas de este tipo de terceros Estados su aplicación resulta significativamente más compleja, en especial si analizamos su tratamiento en el Reglamento Roma I, mucho más restrictivo que su predecesor el Convenio de Roma de 1980. En este contexto la reciente sentencia del Tribunal de Justicia (Nikiforidis) resulta muy relevante, ya que abre la posibilidad a los Estados miembros para tomar en consideración normas de policía de terceros Estados como elemento fáctico en el marco de la lex contractus, sin sujetarla a las restricciones y condicionantes previstos en el art. 9.3.Palabras clave: leyes de policía, normas imperativas, Derecho contractual europeo, Reglamento Roma I, sentencia Nikiforidis.Abstract: This paper addresses some of the issues raised by the application of overriding mandatory provisions, from a European approach. With regard to foreign overriding mandatory provisions, their application is significantly more complex. This approach appears in European Contract Law, particularly regarding the treatment of this issue in the Rome I Regulation, which is much more restrictive than the Rome Convention of 1980. In this context, the recent case law of European Court of Justice (Nikiforidis case) is very significant. Since the judgment gives Member States the possibility to take into account foreign overriding mandatory provisions, as a factual element within the framework of the applicable law to the contract, outside the scope of article 9.3 of the Rome I Regulation.Keywords: overriding mandatory provisions, mandatory rules, European Contract Law, Rome I Regulation, Nikiforidis case.
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Migliorini, Sara. „Quest-ce que sont les lois de police? Une querelle franco-allemande après la communautarisation de la Convention de Rome“. European Review of Private Law 19, Issue 2 (01.04.2011): 187–207. http://dx.doi.org/10.54648/erpl2011012.
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Abstract: Article 7(2) of the 1980 Rome Convention provided that nothing in the Convention shall restrict the application of the rules of the law of the forum in a situation where they are mandatory irrespective of the law otherwise applicable to the contract. The Rome Convention however did not define these 'overriding mandatory provisions'. The absence of a definition gave rise to a controversy between French and German courts. According to the latter, overriding mandatory provisions only protect public interests in a strict sense. However, French courts may consider a provision that exclusively protects the interests of the weaker party as an overriding mandatory provision. The definition of 'overriding mandatory provisions' provided in Article 9(1) Rome I fails to bring any real legal certainty. Since the controversy between the French and German courts essentially relates to the systematic relationship between overriding mandatory provisions and connecting factors protecting a weaker party in the Rome I Regulation, an intervention by the European Court of Justice will be necessary. Resume: L'Article 7(2) de la Convention de Rome sur la loi applicable aux obligations contractuelles laissait au juge la possibilité d'appliquer les lois de police du for, peu importe la loi désignée par la Convention même. Néanmoins, la Convention ne dé. nissait pas la catégorie des lois de police. Chaque juge pouvant appliquer ses propres critères de quail . cation des lois de police, une différence existait entre l'approche française et allemande à cette catégorie. D'une part, la jurisprudence allemande ne quali. ait de lois de police que les dispositions visant à protéger des intérêts strictement publics. D'autre part, la jurisprudence française n'hésitait pas à quali. er les dispositions protectrices des parties faibles comme de lois de police. La dé. nition de 'lois de police' contenue dans l'Article 9(1) du Règlement Rome I ne résout pas cette divergence. En effet, celle-ci découle principalement d'une divergence dans l'interprétation des rapports réciproques entre les lois de police et les critères de rattachement protecteurs des parties faibles. Partant, il revient à la Cour de justice d'intervenir pour trancher cette divergence.
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Żarnowiec, Łukasz. „Wpływ przepisów wymuszających swoje zastosowanie na rozstrzyganie spraw spadkowych pod rządami rozporządzenia Parlamentu Europejskiego i Rady (UE) Nr 650/2012“. Problemy Prawa Prywatnego Międzynarodowego 25 (31.12.2019): 43–65. http://dx.doi.org/10.31261/pppm.2019.25.03.
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Since August 17, 2015 the courts of the Member States of the European Union apply the conflict-of-laws rules adopted in the EU Succession Regulation (EU) in succession matters. From the Polish point of view, this constitutes not only the change of the rules applied for the purposes of determining jurisdiction and the applicable law, but also a new approach to the overriding mandatory provisions.
Contrary to other European instruments of private international law, the Succession Regulation neither uses the term “overriding mandatory provisions”, nor defines its meaning. Nevertheless, in Article 30 the Regulation provides for application — irrespective of the law applicable to the succession under its conflict rules — of the special rules of the State, where certain immovable property, enterprises or other special categories of assets are located, and which — for economic, family or social considerations — impose restrictions concerning or affecting the succession in respect of those assets, in so far as, under the law of that State, they are applicable irrespective of the law applicable to the succession.
The interpretation of this provision cause difficulties. It is not clear whether the concept of the special provisions embodied in Article 30 refers to the concept of overriding mandatory rules, well known in the European private international law, or whether it constitutes an original solution. Another controversial issue discussed in the paper is the relevance of the mandatory rules of the forum or the third State other than those mentioned in Article 30.
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Siehr, Kurt. „Mandatory Rules of Third States From Ole Lando to Contemporary European Private International“. European Review of Private Law 28, Issue 3 (01.09.2020): 509–22. http://dx.doi.org/10.54648/erpl2020028.
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On 18 October 2016 the European Court of Justice, in the case Greece v. Nikiforidis, decided: ‘Article 9 (3) of the Regulation No. 503/2008 on the law applicable to contractual obligations must be interpreted as precluding overriding mandatory provisions other than those of the State of the forum or of the State where the obligations arising out of the contract have to be or have been performed from being applied, as legal rules, by the court of the forum, but as not precluding it from taking such other overriding mandatory provisions into account as matters of fact in so far as this is provided for by the national law that is applicable to the contract pursuant to the regulation’. Ole Lando already anticipated this development when he dealt with this problem arising under the Rome Convention of 1980 on the law applicable to contractual obligations still in force in Denmark. Harmonization, contract law, European private law, restatements
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Aschauer, Christian, und Lukas Klever. „Overriding Mandatory Provisions and Arbitration: A Cadmean Victory for Commercial Agents?“ European Review of Private Law 27, Issue 5 (01.10.2019): 973–84. http://dx.doi.org/10.54648/erpl2019053.
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In a recent decision, the Austrian Supreme Court declared an arbitration clause invalid in the light of the European Court of Justice’s Ingmar decision since it was to be expected that the arbitral tribunal would not apply articles 17 and 18 of the Commercial Agents Directive. According to the Supreme Court’s reasoning, that is the case wherever the parties have chosen a lex causae for their main contract which does not contain provisions similar to articles 17 and 18 Commercial Agents Directive. In the view of the authors, such understanding of the commercial agents directive is neither required by the principle of effectiveness of EU law, nor is it justifiable under the regime of the New York Convention.
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Berends, André J. „Why Overriding Mandatory Provisions that Protect Financial Stability Deserve Special Treatment“. Netherlands International Law Review 61, Nr. 01 (24.04.2014): 69–106. http://dx.doi.org/10.1017/s0165070x14001041.
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Goñi Urriza, Natividad. „La ley aplicable a la forma en las donaciones internacionales. En torno a la STSJ Cataluña de 18 marzo 2019 = Applicable law to the form requirements of international gifts. Around the sentence of The High Court of Cataluña of 18 March 2019“. CUADERNOS DE DERECHO TRANSNACIONAL 12, Nr. 1 (05.03.2020): 586. http://dx.doi.org/10.20318/cdt.2020.5205.
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Resumen: La sentencia del Tribunal Superior de Justicia de Cataluña de 18 de marzo de 2019 resuelve sobre la validez de una donación entre esposos de un bien inmueble sito en Ingarö (Suecia). La sentencia se pronuncia sobre la aplicación al caso del Reglamento Roma I y del desplazamiento del art. 11CC como norma de conflicto aplicable a la validez formal de la donación, tampoco la considera ley de policía del foro.Palabras clave: requerimientos de forma, donaciones internacionales entre esposos, leyes de policía, Reglamento Roma I. art. 11CC. Abstract: The Judgment of the High Court of Cataluña of 18 March 2019 ruled on the formal validity of an international gift between spouses of a land situated in Ingarö (Sweden). The Judgment apply the Rome I Regulation and avoid the application of art. 11CC even as an overriding mandatory provision of the law of the forum.Keywords: form requirements, international gifts between spouses, overriding mandatory provisions, Rome I Regulation. art. 11CC.
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Franciosi, Laura Maria. „The Effects of COVID-19 on International Contracts: A Comparative Overview“. Victoria University of Wellington Law Review 51, Nr. 3 (09.11.2020): 413. http://dx.doi.org/10.26686/vuwlr.v51i3.6610.
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This article provides a timely consideration of the effect of COVID-19, and legislative measures taken to deal with it, on contractual liabilities. The relationship of COVID-19 events to the defences of force majeure and hardship are investigated by comparative analyses of several countries' laws as well as the issue whether the national lockdown measures can be qualified as "overriding mandatory provisions". The study is of both domestic contracts and international commercial contracts.
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Zachariasiewicz, Maria-Anna. „Metoda unilateralna w prawie prywatnym międzynarodowym. Uwagi na marginesie orzeczenia TSUE w sprawie C-135/15 Republika Grecji przeciwko Grigoriosowi Nikiforidisowi“. Problemy Prawa Prywatnego Międzynarodowego 29 (29.12.2021): 125–49. http://dx.doi.org/10.31261/pppm.2021.29.05.
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The article confronts the unilateral and multilateral methods in private international law. The author first identifies the basic differences between the two. She then moves to describe the instruments and concepts resulting from the unilateral method: the theories of the Statutists in the period between 12th to 19th centuries, the solutions offered by the so called new American school, the method of recognition of private situations crystallized in a foreign legal system, the rules governing the spatial scope of the EU provisions, including the regulations and the directives, and finally the paradigm of the overriding mandatory rules.
The second part of the paper provides a comment to the Nikiforidis case. The author makes a number of critical remarks with respect to the restrictive and rigid interpretation of Article 9(3) adopted by the CJEU. The argument is made that the more flexible and functional approach proposed by the Attorney General Maciej Szpunar in his Opinion should be preferred. Finally, the author makes her own proposition regarding the Nikiforidis case. She advocates a unilateral methodology that rejects the distinction between the overriding mandatory rules of the legis fori, legis causae and these of a third country.
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Surdykowska, Barbara. „Ochrona interesów publicznych w Rozporządzeniu Rzym I w kontekście zróżnicowania standardów pracowniczych w UE“. Miscellanea Historico-Iuridica 20, Nr. 1 (2021): 305–22. http://dx.doi.org/10.15290/mhi.2021.20.01.15.
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The paper refers to the concept of public interest contained in Art. 9 of the Rome I Regulation. The author argues that in the light of the processes taking place on the labor market (such as the digitization of the labor market and employment via platforms) and problems with defining the scope of the directive on posted workers in the context of drivers of international transport, courts may treat national regulations in the field of labor law as overriding mandatory provisions. The main goal of the paper is to draw attention to the need to increase the interest in the doctrine of labor law in the sphere of the potential application of Art. 9 Rome I. With regard to employment issues, a question arises regarding the minimum wage applicable in a given country in conjunction with the issue of the freedom to provide services. The European Court of Justice referred to the issue of ensuring fair remuneration of employees as an important element of the “overriding general interest” justifying the restriction of the freedom to provide services. In the deliberations in the Mazzoleni judgment, the ECJ also emphasized that the application of the minimum wage of the country in which the service is performed may be a disproportionate burden, especially in a situation where the enterprise providing the services is located in the border territory and the work performed in the host country is temporary, short and part-time. An interesting issue is the “translation” of the considerations contained in the aforementioned judgment into the emerging employment through internet platforms. Some background for the above considerations is the fact that in the literature of private international law, among the overriding mandatory provisions, the most frequently indicated are anti-monopoly provisions, in the field of foreign exchange law, regarding the prohibition of import or export of certain goods, but this is also important from the point of view of the paper, more and more often regulations based on a private-law method of regulation. The paper also includes considerations regarding the concept of “public interest”.
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Kronenberg, Alexander. „Foreign overriding mandatory provisions under the regulation (EC) No 593/2008 (Rome I Regulation). Judgment of the European Court of Justice of 18 october 2016, case c-135/15 = Leyes de policía de terceros estados en el ámbito del reglamento (CE) No 593/2008 (Reglamento Roma I). Comentario a la STJUE de 18 de octubre de 2016, asunto c-135/15“. CUADERNOS DE DERECHO TRANSNACIONAL 10, Nr. 2 (05.10.2018): 873. http://dx.doi.org/10.20318/cdt.2018.4409.
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Abstract: The role and treatment of foreign overriding mandatory provisions in international contract law have been subject to academic discussions for a long time. This has not changed with the introduction of Article 9 of the Rome I Regulation. In the judgment discussed in this case note, the European Court of Justice addressed some of the contentious issues in relation to Article 9(3) of the Rome I Regulation. This note examines and evaluates the solutions found by the ECJ and puts them into context. It also points out some questions the ECJ did not discuss; these questions remain open for now but will need to be addressed in the future.Keywords: Article 9(3) Rome I Regulation, foreign overriding mandatory provisions, conflict-of-law level consideration, substantive law level consideration, principle of sincere cooperation.Resumen: El tratamiento de las leyes de policía de terceros estados en derecho de contratos internacionales ha sido objeto de la polémica desde hace tiempo. Esto no ha cambiado con la entrada en vigor del artículo 9 del Reglamento Roma I. Con la sentencia comentada el Tribunal de Justicia de la Unión Europea ha tratado algunas de la cuestiones debatidas respecto al artículo 9.3 del Reglamento Roma I. Este comentario analiza, evalúa y pone en contexto las soluciones encontradas por el TJUE. También aborda las cuestiones que no han sido comentadas por el TJUE; estas cuestiones permanecen abiertas por el momento pero deberán ser examinadas en el futuro.Palabras clave: leyes de policía de terceros estados, consideración en nivel conflictual, consideración en nivel sustantivo, principio de cooperación leal.
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Rühl, Giesela. „Commercial agents, minimum harmonization and overriding mandatory provisions in the European Union: Unamar“. Common Market Law Review 53, Issue 1 (01.02.2016): 209–24. http://dx.doi.org/10.54648/cola2016009.
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Merrett, Louise. „Posted Workers in Europe from a Private International Law Perspective“. Cambridge Yearbook of European Legal Studies 13 (2011): 219–44. http://dx.doi.org/10.5235/152888712801752960.
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AbstractCases involving the posting of workers will inevitably involve international elements and therefore issues of private international law. Historically, it has been assumed that English employment law is territorial: in particular section 204 of the Employment Rights Act 1996 provides that the provisions of the Act apply irrespective of the law applicable to the contract. This contribution examines this proposition through the perspective of private international law principles, and also considers the compatibility of section 204 with the private international law rules in the Posted Workers Directive and the new definition of overriding mandatory rules in the Rome I Regulation.
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Merrett, Louise. „10 Posted Workers in Europe from a Private International Law Perspective“. Cambridge Yearbook of European Legal Studies 13 (2011): 219–44. http://dx.doi.org/10.1017/s1528887000000859.
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AbstractCases involving the posting of workers will inevitably involve international elements and therefore issues of private international law. Historically, it has been assumed that English employment law is territorial: in particular section 204 of the Employment Rights Act 1996 provides that the provisions of the Act apply irrespective of the law applicable to the contract. This contribution examines this proposition through the perspective of private international law principles, and also considers the compatibility of section 204 with the private international law rules in the Posted Workers Directive and the new definition of overriding mandatory rules in the Rome I Regulation.
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Merrett, Louise. „Posted Workers in Europe from a Private International Law Perspective“. Cambridge Yearbook of European Legal Studies 13 (2011): 219–44. http://dx.doi.org/10.1017/s1528887000002032.
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Abstract Cases involving the posting of workers will inevitably involve international elements and therefore issues of private international law. Historically, it has been assumed that English employment law is territorial: in particular section 204 of the Employment Rights Act 1996 provides that the provisions of the Act apply irrespective of the law applicable to the contract. This contribution examines this proposition through the perspective of private international law principles, and also considers the compatibility of section 204 with the private international law rules in the Posted Workers Directive and the new definition of overriding mandatory rules in the Rome I Regulation.
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Pavić, Vladimir. „Bribery and International Commercial Arbitration – the Role of Mandatory Rules and Public Policy“. Victoria University of Wellington Law Review 43, Nr. 4 (01.12.2012): 661. http://dx.doi.org/10.26686/vuwlr.v43i4.5016.
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Although designed to resolve private disputes, usually commercial in nature, arbitration may nevertheless encounter during its course allegations of impropriety and criminal behaviour. In the context of international commercial arbitration, the most common of those are allegations of bribery. However, tribunals may adjudicate only matters of private law and, should they establish existence of bribery, may draw only civil law consequences thereof. An additional problem in this respect is determining the body of rules that will be applicable in defining the very notion of bribery, since some aspects of bribery are almost universally prohibited, while the others are banned only in certain jurisdictions. In determining the law applicable to the matters of bribery, tribunals then face choice-of-law dilemmas. Each of the public policy techniques (overriding mandatory provisions, international and/or transnational) has its strengths and weaknesses.
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Remien, Oliver. „Commercial Agents, the Directive and European Private International Law“. European Review of Private Law 28, Issue 3 (01.09.2020): 529–39. http://dx.doi.org/10.54648/erpl2020030.
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The protection of commercial agents under Directive 86/653 in international cases raises questions of private international law. Here, several different fact situations are analysed: In, first, the normal single market case where commercial agent and principal both are active in Member States, Article 3 (4) Reg. Rome I assures protection of the commercial agent even where the law of a third country has been chosen by the parties. Where, second, the principal is from a third state but the commercial agent is active in the single market, the European Court of Justice (ECJ) in Ingmar has ruled that the protection according to the Directive applies. Its rules then should be considered as overriding mandatory provisions in the sense of Article 9 Reg. Rome I. Where, third, the protection provided for by the Directive has in Member State law been extended to commercial agents not covered by the Directive, this extended protection according to the UNAMAR judgment of the ECJ may under certain conditions override even the law of another Member State – and the Belgian Court of Cassation has actually decided in this sense. In the specific case, though, the result is odd and apparently helped to oust an arbitration clause. Fourthly, in case of an extra-EU commercial agent and an EU-principal, according to the ECJ case Agro the protection foreseen by the Directive need not necessarily be granted to the foreign commercial agent by the applicable Member State law. This, according to the ECJ, even is the case where the EU-provisions have been transplanted into the legal system of the third state where the commercial agent is active. It is shown that this is very questionable and that the third state rule can – similarly to Ingmar – be an overriding mandatory provision. The restrictive Article 9 (3) Reg. Rome I here poses some problems, which, however, can be overcome. The Belgian Enterprise Court in Ghent in fact used Article 7 Rome Convention
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Starzhenetskiy, Vladislav V., und Yana A. Bagrova. „(Anti)Sanctions Clauses in International Commercial Contracts“. Zakon 19, Nr. 7 (Juli 2023): 123–45. http://dx.doi.org/10.37239/0869-4400-2023-20-7-123-145.
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The article provides analysis of sanctions clauses in international commercial contracts. Such clauses are intended to regulate actions of the parties in the event of sanctions and corresponding legal consequences. In comparison to classic force majeure clauses sanctions clauses have a number of advantages and may serve several interrelated purposes, including securing compliance by the parties with mandatory rules that impose restrictions on certain economic activity, adaptation of the contract to new circumstances in the event of economic sanctions, regulation of termination of the contract, as well as the distribution of risks and costs incurred by the parties in connection with this. The authors explore the structure of sanctions clauses and their provisions, which cause difficulties in practice, diverse approaches to determining the scope of sanctions clauses in the context of extraterritorial sanctions and blocking statutes, different threshold for sanctions risks that activate the clause, spectrum of options to secure adaptation of contract provisions depending on the specifics of the sanctions regimes, standards of due care and endeavours that are expected from parties in the context of sanctions, conditions for termination of contracts and possibilities for the distribution of costs incurred, including the payment of indemnity. The article also discusses validity of sanctions clauses, their relationship with overriding mandatory rules and norms preventing circumvention of the law, considers the risks of asymmetric and disparity provisions. Particular emphasis is placed on the relationship of sanctions clauses with other sections of international contracts, in particular applicable law and dispute resolution clauses.
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Fras, Mariusz. „Overriding Mandatory Provisions in Insurance Law and the Conflict-of-laws Rules in the Motor Insurance Directive 2009/103/EC“. Gdańskie Studia Prawnicze, Nr. 3(60)/2023 (15.09.2023): 185–95. http://dx.doi.org/10.26881/gsp.2023.3.12.
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This commentary concerns the judgement of 31.01.2019 in the case of Agostinho da Silva Martins (C-149/18), in which the CJEU ruled on the relation of the provisions contained in the Motor Insurance Directive 2009/103/EC of 16.09.2009 to EU conflict-of-laws rules contained in the Rome II Regulation on the law applicable to non-contractual obligations.
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Ungerer, Johannes. „Explicit legislative characterisation of overriding mandatory provisions in EU Directives: Seeking for but struggling to achieve legal certainty“. Journal of Private International Law 17, Nr. 3 (02.09.2021): 399–420. http://dx.doi.org/10.1080/17441048.2021.1970702.
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Zhang, Wenjuan, und Avaantika Chwla. „Legislating Mandatory Reporting of Child Abuse in India and China: A Divergence of Legislative Choice“. Socio-Legal Review 18, Nr. 2 (Juli 2022): 230. http://dx.doi.org/10.55496/ijee1637.
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Mandatory reporting is used as a tool for early identification of child abuse by countries around the world. However, there is variation in terms of the legislative models followed. The two models most commonly followed are universal mandatory reporting and stakeholder specific mandatory reporting. India and China joined the bandwagon and introduced legislation on mandatory reporting over a decade ago. While India has adopted the ambitious model of universal mandatory reporting, China has taken a more incremental and experimental approach with stakeholder-specific mandatory reporting. The paper aims to differentiate the legislative approaches taken by the two countries for introducing mandatory reporting for child abuse, by delving into the legislative history, legislative provisions, and implementation challenges for mandatory reporting in both jurisdictions. The paper does not comment on the sanctity of mandatory reporting, but is limited to a comparative analysis of the legislative strategies taken by India and China.
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Dickinson, Andrew. „Oiling the machine: overriding mandatory provisions and public policy in the Hague Principles on Choice of Law in International Commercial Contracts“. Uniform Law Review 22, Nr. 2 (01.06.2017): 402–21. http://dx.doi.org/10.1093/ulr/unx024.
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Rebrysh, Bohdan, und Natalia Maskayeva. „International Universal Unification of the Conflict-of-Law Regulation of Cross-Border Unfair Competition“. Russian Law Journal 7, Nr. 2 (30.05.2019): 101–27. http://dx.doi.org/10.17589/2309-8678-2019-7-2-101-127.
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This article puts forward that there are diverse and sound grounds preventing the universal treaty regulating comprehensively the issues of legal protection from crossborder unfair competition by substantive norms from being worked out in the near future. The development of the universal unification of the conflict-of-law rules on the law applicable to the private relations arising out of unfair competition as a possible alternative is also proposed and substantiated. The authors give some possible reasons for the absence of such a treaty and demonstrate the results that have been achieved so far in this field. The concept of the Draft of the relevant Convention is drawn up. The conclusion is made that the latter needs to be centered on the lex mercatus as a single connecting factor (due to its advantages of predictability, account of the interests of the state where the effected market is situated etc.). Furthermore, the Convention should not provide for party autonomy, should set forth the detailed rules for the legal characterization of the basic terms of the Convention, including the scope of the applicable law as well as the public policy clause and the norms on the overriding mandatory provisions.
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Barreda, Naivi Chikoc. „Entre la lex causae et les lois de police de la lex fori: quelle alternative pour la protection du logement familial dans le règlement « régimes matrimoniaux »?“ European Review of Private Law 27, Issue 3 (01.06.2019): 583–615. http://dx.doi.org/10.54648/erpl2019029.
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The law applicable to the matrimonial property regime under Regulation 2016/1103 governs all the property relations between the spouses and with regard to third parties including the rules providing for the protection of the family home. The choice of law rules of the Regulation are based on the principle of party autonomy and on the need to ensure the predictability of the applicable law, to the detriment of the links connecting the current situation of the spouses with the law intended to govern it. Against the background of an increasing cross-border mobility, the connecting factors of the objective conflict rule, fixed at the time of the conclusion of the marriage, prove to be unsuitable with regard to the protective rules of the family home whose implementation would command the application of the law having the closest connection to the real situation of the spouses. In this context, the exceptional mechanisms consisting in the escape clause and in the overriding mandatory provisions of the lex fori are also inadequate to ensure the effectiveness of the protective measures of the family home under the lex situs.
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Alhammad, Ibrahim, und Tae Yeual Yi. „Towards BIM Guidelines in Saudi Arabia: Literature Review and Stakeholders Identification“. IOP Conference Series: Earth and Environmental Science 1026, Nr. 1 (01.05.2022): 012055. http://dx.doi.org/10.1088/1755-1315/1026/1/012055.
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Abstract BIM is a graphical representation for a given engineering design, let be the structure of a building, which carries information related to 3D view, cost estimation, scheduling, and others. BIM is created and used mainly by the owner. By default, the designer, contractor, and supplier are shared and treated by all parties as an advanced medium of technical and visual communication. In the last few years, and many developed countries, BIM documents, and related legal provisions have become mandatory in construction projects contract documents by public and private owners and project stakeholders as best practice. The authors observed that although some projects in Saudi Arabia have used BIM, it is still not as widely used as it is supposed to be. It is apparent to the authors that the leap of using BIM in the Saudi Construction Industry without proper provisions in the contract documents among the construction project stakeholders will create confusion. The paper explores the current status and trend of using BIM in the construction industry and related difficulties and challenges to using BIM in Saudi Arabia. Ultimately, based on those investigated results, the paper proposes the basic guidelines for applying BIM following the situation of the national construction industry in Saudi Arabia.
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Supriyadi, Supriyadi, und Widyatmi Anandy. „Dinamika Penanganan Pelanggaran Administrasi“. Jurnal Adhyasta Pemilu 3, Nr. 2 (06.12.2021): 141–58. http://dx.doi.org/10.55108/jap.v3i2.15.
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Bawaslu is an institution that is given the authority to resolve election / election administration violations. The nature of Bawaslu's decisions and recommendations for administrative violations must be followed up by the KPU and its officials, this is confirmed in the provisions of Article 462 of Law No. the administration issued by Bawaslu is not obeyed by the institution implementing the decision / recommendation. Identification of problems: first, what is the nature of mandatory norms in the provisions of the Election / Pilkada Law? Related to follow-up on decisions / recommendations of Bawaslu Administrative Violations? Second, how is the Compliance with the Decision / Recommendation of Administrative Violation of Bawaslu? Third, what factors influence compliance with Bawaslu Administrative Violation Decisions / Recommendations? This research is a normative juridical study with a focus on analyzing decisions / recommendations for administrative violations of Bawaslu. in this study using a statutory approach, a case approach, and a conceptual approach. The data sources used are primary, secondary and tertiary data. The research results and conclusions. First, the "mandatory" norm in the construction of Article 462 of the Election Law and Article 139 paragraph (2) of the Election Law is imperative (order / force). Second, the KPU institutionally still has an attitude of indifference
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Alhadidi, Ismaeel. „The Legal Status of the Convention on the Carriage of Goods by Sea in 1978 (Hamburg Rules) before the Jordanian Judge Compared to the French Judge“. Jordanian Journal of Law and Political Science 14, Nr. 1 (30.03.2022): 147–86. http://dx.doi.org/10.35682/jjlps.v14i1.338.
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This study aims to compare the legal status of the United Nations Convention on the Carriage of Goods by Sea (Hamburg, 1978) (Hamburg Rules) before the Jordanian judge with its legal status before his French homologue. It is illustrated that the Jordanian judge is bound by the provisions of the Convention since his country became a party to it in 2001. Therefore, the Jordanian judge cannot ignore the criteria of applicability prescribed in Article 2 of the Convention. In addition, when the two parties to the contract designate the Convention as a governing law, it becomes applicable ex proprio vigore. While the French judge finds a leeway when called to pronounce on the applicability of the Convention due to the fact that France did not accede to it. That is why he treats it as a foreign legislation. In fact, the French judge does not give efficacity to the Convention except if his private international law does. This happens mainly when the two parties to the contract of carriage of goods choose the Convention as the law governing their contract. Such an agreementcan be construed as a raise of the limits of the responsibility of the carrier and his obligations whose validity is recognized by the French judge’s legislation. Furthermore, the French judge can give effect to the agreement on the basis of the notion of foreign overriding mandatory rules since his private international law allows him to do so.
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Roshchin, D. O., und O. Y. Aleksandrova. „Updating the procedures for providing medical care services to patients with cardiovascular diseases“. Complex Issues of Cardiovascular Diseases 11, Nr. 4 (09.01.2023): 72–78. http://dx.doi.org/10.17802/2306-1278-2022-11-4-72-78.
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Highlights. The process of updating the procedures for providing medical care services affects the quality and safety of patients. The current requirements and the results of public health surveillance are analyzed. Hypotheses have been formed for expert analysis in case of update of regulatory and administrative laws.Aim. To analyze the procedures for providing medical care services to further search for appropriate updating mechanisms.Methods. The study focuses on the analysis of the current procedures for provision of medical care services to the adult population suffering from cardiovascular diseases, and the analysis of 1319 reports published by governmental organizations during public healthcare surveillance for the period from 2015 to 2019 which revealed violations of the procedures for provision of medical care services to patients with cardiovascular diseases.Results. The procedures for providing medical care services to patients with cardiovascular diseases contain 983 provisions. 768 (78.13%) of them are equipment standards. Out of the remaining 215 provisions, excluding the equipment standards, 130 (60.46%) meet the criteria for mandatory requirements, and 63 provisions (29.30%) are unique (i.e., not duplicated in other legal acts). Of the 1319 inspections conducted by Roszdravnadzor (Federal Service for Surveillance in Healthcare) in 2015- 2019, 190 cases contained violations of the procedures for providing medical care services to cardiac patients. Of the 308 cases of detected violations, 206 (66.88%) were due to the absence of certain items provided for by the equipment standard. At the same time, 93.14% of all violations that were not associated with the equipment standards, occurred due to violation of 7 provisions of the Order of the Ministry of Healthcare of Russian Federation No. 918n. Identification of pattern of these violations revealed that issues related to the absence of two regulations of the equipment standard in medical organizations have never been addressed.Conclusion. The procedures for provision of medical care services to patients with cardiovascular diseases contain a relatively small number of mandatory requirements (compared to the total number of provisions contained in the procedures). Identification of the same type of violations of the regulatory act committed by numerous medical organizations indicates necessity to further assess their real contribution to the quality and safety of healthcare. The analysis of the reports published by governmental organizations made it possible to develop hypotheses that can be analyzed as “input” data by experts who participate in the process of updating the procedures for providing medical care services. The existence of data that could initiate the process of updating the procedures (or the process of rejecting the amendments) will assist in systematization of this work.
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Shemyakina, Marina Sergeevna. „Threats to the economic security of the Republic of Mari El in the field of countering the legalization (laundering) of proceeds from crime in the market for the sale of real estate“. Национальная безопасность / nota bene, Nr. 5 (Mai 2023): 77–89. http://dx.doi.org/10.7256/2454-0668.2023.5.43903.
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The subject of the research is the relations that arise in the process of combating the legalization (laundering) of criminal proceeds in the economy. The author substantiates the need to change the current legislation in terms of classifying self-employed persons who provide intermediary services in real estate purchase and sale transactions as persons who are required to register with Rosfinmonitoring and exercise mandatory control over part of the transactions. In the article, on the basis of the algorithm developed by the author, a check was made of the compliance of realtors and real estate agencies of the Republic of Mari El with the legislation in the field of combating the legalization (laundering) of proceeds from crime. Particular attention is paid to recommendations for improving the mechanism of operation of the Domclick service with realtors and real estate agencies.The scientific novelty of the study lies in the identification of real estate purchase and sale transactions through the Domclick service, which are carried out by real estate agencies that are not registered with Rosfinmonitoring and do not exercise mandatory control over transactions, as well as determining the share of transactions in the primary market that are subject to mandatory control using the example Republic of Mari El. The results obtained contain practical recommendations for changing the current legislation, develop theoretical provisions in terms of ensuring the economic security of public legal entities, and also determine the identification of one of the threats to the economic security of the Republic of Mari El: the threat of legalization (laundering) of proceeds from crime in the market sale of real estate.
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Bouček, Vilim. „Smjernice u postlisabonskom europskom međunarodnom privatnom pravu“. Zbornik Pravnog fakulteta u Zagrebu 72, Nr. 3 (30.06.2022): 799–826. http://dx.doi.org/10.3935/zpfz.72.3.02.
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This paper discusses the application of the EU directive as a source of European private international law with an emphasis on the post-Lisbon period in private international law of the member states. After presenting the main features of a directive in private international law, such as the legal basis for those “measures” in secondary legislation, types of directive, their structure, purpose and the effects of a directive, the author points out the special importance of the directive expressed in the Ingmar and Unamar cases of the Court of Justice of the European Union. In both cases the legal framework was Council Directive 86/653/EEC of 18 December 1986 on the coordination of the laws of the Member States relating to self-employed commercial agents. In the Ingmar case of 2000, although lacking a (unilateral) conflict of law rule, the Court gave, by interpretation, the position of an unwritten (or hidden) conflict of law rule to a substantive law provision of the Directive. At the same time the Court determined that the provisions of Articles 17 to 19 are to be regarded as mandatory rules for the purposes of private international law. For the former EC legal order it was essential that a principal established in a non-member country (USA), whose commercial agent acts within the EC, cannot evade those provisions by freely choosing un-harmonized applicable law. In 2013 Court of Justice of the European Union was again asked to deal with Council Directive 86/653/EEC of 18 December 1986 but in the new Unamar case with parties from Bulgaria (principal) and Belgium (commercial agent). Again, the Court confirmed the mandatory character of Articles 17 and 18 of the Directive and applied also Art. 7(2) of the Rome Convention of 1980. In his ruling it took into consideration the provisions of Art. 9(1) of the Rome I Regulation in which there is a definition of overriding mandatory provisions. Taking into account the terms of the mandatory provisions, but this time also consistent with the wording of Article 9(1) of the Rome I Regulation of 2008, the Court concluded that the law chosen by the parties to a commercial agency contract may be rejected by the court of another Member State before which the case has been brought in favor of the law of the forum, owing to the mandatory nature in the legal order of that Member State, only if the court of the forum state held it to be crucial to grant the commercial agent protection, going beyond that provided for by the directive, thus taking account of the nature of such mandatory provisions. From June 1988 to today (2021) the EEC, the EC and the EU adopted a considerable number of directives as measures for the approximation of national law dealing mostly with consumer, but also employment and insurance issues, setting forth conflict rules. These sector-specific rules (or special conflict rules for certain (consumer) contracts) from the second-generation directives based on unilateral conflict rules prevail over the conflict rules of the Rome Convention of 1980 (Art. 20) and the Rome I Regulation of 2008 (Art. 23) in relation to particular matters, lay down conflict-of-law rules relating to contractual obligations. This situation creates a “labyrinth” of legal sources dealing with conflict-of-law rules on the national, (ex international) and on the European level. The described fragmentation of a situation where conflict-of-law rules are depressed among several instruments and where there are differences between those rules, contrary to Recital 40(1)-1) Rome I Regulation, has not been avoided. But at the same time the Rome I Regulation did not exclude the possibility of including conflict-of- rules with regard to particular matters (Recital 40(1-2) Rome I Regulation). At the end of this paper the author answered one additional question: How to solve the problem of the lack of coordination between the Rome I Regulation of 2008 and other provisions of EU law, including national laws implementing those acts? The first step may be to give a narrow interpretation of Art. 23 of the Rome I Regulation and to give precedence only to special EU conflict-of-law rules in relation to a particular matter. Stricto sensu it means, all provisions in the consumer directives which provide that, if a contract has a direct link to the territory of one or more Member States, EU law will apply, even if the parties have chosen the law of a third country, should not (always) be regarded as choice of law rules. Such a consideration has the potential to exclude the application of Art. 23 of the Rome I Regulation and rather apply Article 3(4) or 9(2) of Rome I. An example of such “conflict-of-law rule” is Article 22(4) of Consumer Credit Directive 2008/48 EC of 23 April 2008 on credit agreements for consumers (OJ EU L 133/66). The second step is to reopen the lost political battle from 2008 of the European Parliament for a general precedence of all EU internal market law. Thirteen years after Rome I was adopted we have some additional arguments in favor of applying the general principle of supremacy in EU law without breaching “the proper functioning of the internal market” (Recital 40(2) of the Rome I Regulation). The first argument is general, known as the process of communitarization. Its result is not just Rome I (without Article 23) but also Directive 2011/83/ EU of 25 October 2011 on consumer rights, which is a new legal act in the post-Lisbon period of the EUPIL and among consumer directives should be seen as lex posterior. It is not for the first time that in such kind of Directive there is no unilateral conflict rule with the aim to protect all EU values by applying EU law. But the relevant provision lays down that the consumer should not be deprived of the protection granted by that Directive, and that, where the law applicable to the contract is that of a third country, Regulation Rome I should apply in order to determine whether the consumer retains the protection granted by that Directive (Recital 58 of the Directive on consumer rights). Taking into consideration all above mentioned arguments, the author concludes: in the third decade of the 21st century the post-Lisbon legal practice regarding special EU conflict-of-law rules relating to particular matters contained in EU Directives on consumer protection should no longer prevail. The application of the Directives with or without a unilateral conflict rule in a situation with an international element should instead be safeguarded through the application of the provisions of Articles 3(4) and Art. 6(2) for consumer protection, and Article 9(2) of the Rome I Regulation of 2008 in order to determine whether the consumer retains the protection granted by that Directive.
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SITNIKOVA, Valentina A., und Sofiya A. SITNIKOVA. „Accounting policy of economic entities in the conditions of application of Federal Accounting Standard (FSBU) 6/2020 – Fixed Assets“. International Accounting 25, Nr. 8 (15.08.2022): 925–46. http://dx.doi.org/10.24891/ia.25.8.925.
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Subject. This article discusses the development of the accounting policy provisions in accordance with the requirements of the Federal Accounting Standard (FSBU) 6/2020 – Fixed Assets, for the identification of fixed assets, their valuation, depreciation, write-off of objects from accounting, disclosure of information about fixed assets in accounting (financial) statements. Objectives. The article aims to analyze the provisions of the Federal Accounting Standard (FSBU) 6/2020 – Fixed Assets in the context of its sections for the need for local regulation of certain issues of accounting for fixed assets, and develop options for internal regulations to include them in the accounting policy of an economic entity for the purpose of accounting for fixed assets. Methods. For the study, we used the methods of analysis and synthesis, comparison, generalization, and modeling. Results. The article identifies issues in respect of which local regulation is necessary on the basis of the requirements of the Federal Accounting Standard (FSBU) 6/2020 – Fixed Assets, and offers options for the provisions of the accounting policy in order to form information on fixed assets of economic entities. Conclusions and Relevance. The article concludes that it is necessary to adapt the accounting policy of economic entities to the requirements of the Federal Accounting Standard (FSBU) 6/2020 – Fixed Assets in connection with the need for its mandatory application, starting with the accounting (financial) statements for 2022. The proposed recommendations may be useful for further research on the formation of information on fixed assets of economic entities and for practical application by economic entities in drawing up the provisions of accounting policy for the purpose of fixed assets accounting.
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Kokotov, A. N. „The Constitution of Russia and Ideology“. Actual Problems of Russian Law 18, Nr. 12 (10.11.2023): 11–23. http://dx.doi.org/10.17803/1994-1471.2023.157.12.011-023.
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The paper examines an ideological element of constitutional regulation, based on the understanding of ideology as part of a collective worldview aimed at expressing long-term ideals and interests of people related to the structure of society, its political and state organization. At the same time, the constitutional provisions on ideological and political diversity serve as the basis for the identification of a national ideology in the interaction of group (party) programs, the generalized expression of which constitutes the national idea. The author subjects to detailed analysis the provision of Part 2 of Article 13 of the Constitution of the Russian Federation stating that no ideology can be established as state or mandatory one. This prohibition cannot apply to constitutionally fixed ideologems as elements of a national ideology and their clarifying regulation. This prohibition is a means of securing ideological diversity. Constitutional ideologemes, which include, for example, the provisions of the Preamble, Articles 671 and 751, are being developed in other norms of the Constitution and current legislation. But the main direction of concretization of such ideologies is their value-doctrinal development in official strategies, doctrines, concepts. At this level, a systematic study of the civilizational vector of the country’s development is important. The idea of arranging the country, all aspects of its life can serve as a significant internal guideline.
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Rinaudo, Jean Daniel, und Patrice Garin. „The benefits of combining lay and expert input for water-management planning at the watershed level“. Water Policy 7, Nr. 3 (01.06.2005): 279–93. http://dx.doi.org/10.2166/wp.2005.0018.
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With the promulgation of the EC Water Framework Directive (WFD), stakeholders’ involvement in water management planning and public consultation has become mandatory for member states. This paper investigates the case of France, where water management has been based on a distinctive form of “participatory democracy” for over 40 years. It first analyses how public participation and expert opinion fit into the water-management planning procedure and compares this to what occurs elsewhere in Europe and the United States. It then proposes an operational method for initiating the participatory process with an analysis of the stakeholders' viewpoint at the watershed level. The method, which relies on interviews, is applied to two watersheds located in southern France. The results of the two case studies illustrate how the stakeholders' viewpoint analysis can give access to practical knowledge and experience and to a wider range of perspectives and options. The case studies highlight the idea that the mobilisation of non-scientific (or lay) knowledge, values and preferences can improve the quality of the identification of the issues at stake, the formulation of a generally complex and unstructured problem and the identification of a large panel of alternative solutions. The paper then proposes some recommendations for implementing the provisions of the WFD.
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Marshall, Stephanie, Astri Maria Lang, Marta Perez und Ola D. Saugstad. „Delivery room handling of the newborn“. Journal of Perinatal Medicine 48, Nr. 1 (18.12.2019): 1–10. http://dx.doi.org/10.1515/jpm-2019-0304.
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AbstractFor newly born babies, especially those in need of intervention at birth, actions taken during the first minute after birth, the so-called “Golden Minute”, can have important implications for long-term outcomes. Both delivery room handling, including identification of maternal and infant risk factors and provision of effective resuscitation interventions, and antenatal care decisions regarding antenatal steroid administration and mode of delivery, are important and can affect outcomes. Anticipating risk factors for neonates at high risk of requiring resuscitation can decrease time to resuscitation and improve the prognosis. Following a review of maternal and fetal risk factors affecting newborn resuscitation, we summarize the current recommendations for delivery room handling of the newborn. This includes recommendations and rationale for the use of delayed cord clamping and cord milking, heart rate assessment [including the use of electrocardiogram (ECG) electrodes in the delivery room], role of suctioning in newborn resuscitation, and the impact of various ventilatory modes. Oxygenation should be monitored by pulse oximetry. Effects of oxygen and surfactant on subsequent pulmonary outcomes, and recommendations for provisions of appropriate thermoregulatory support are discussed. Regular teaching of delivery room handling should be mandatory.
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Zemlin, A. I., M. A. Matveeva und E. V. Gots. „Risk Management for the Safe Use of Highly Automated Vehicles in a Metropolis: Systems and Legal Analysis“. World of Transport and Transportation 21, Nr. 3 (19.11.2023): 115–23. http://dx.doi.org/10.30932/1992-3252-2023-21-3-11.
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The article presents the results of a scientific study of current issues of risk management associated with ensuring safe operation of unmanned vehicles, obtained by the authors as a result of implementation of the second stage of a scientific project supported by the Russian Science Foundation. The conclusions presented in the article are based on the results of a study of legal and organisational problems of ensuring the safe use of unmanned vehicles in a metropolis, carried out during the first stage of the project.The study confirmed the authors’ assumption that solving the problem of ensuring the safe use of unmanned vehicles is possible based on scientific research into the risks arising during their operation. It is substantiated that identification, differentiation, monitoring of risks determined by appearance of unmanned vehicles on highways is a necessary condition for development of a scientifically based system of legal measures of general and private prevention, including measures of legal liability for relevant offenses, based on categorisation of risks and threats of violation of mandatory requirements adopted to ensure transport safety and traffic management using this type of vehicle.The fundamental provisions are analysed and comprehended underlying the application of the riskbased approach in homogeneous and single-type social relations.
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Kozynets, I. G., und K. B. Mishasta. „Principle of the rule of law in administrative judiciary“. Uzhhorod National University Herald. Series: Law, Nr. 64 (14.08.2021): 235–39. http://dx.doi.org/10.24144/2307-3322.2021.64.43.
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One of the key principles of administrative justice - the rule of law, is analyzed in this article. In other words, the article is devoted to a generalized study of legislation and scientific sources to identify the meaning of the principle of the rule of law as a universal principle of administrative justice. It`s role in the administrative process is outlined. It was noted that this principle is reflected and consolidated not only in the provisions of the Code of Administrative Procedure of Ukraine, but also in other regulations. The different opinions of scientists on the understanding of the principle of the rule of law are analyzed. On the basis of various approaches and identification of different aspects of understanding of the principle of the rule of law in the scientific literature, voicing positions on the impossibility of a thorough definition of its essence, the complexity and complexity of its essence. In accordance with the principle of the rule of law, the law and its norms incorporated in the current legislation are the main regulating factor of social relations, including administrative and procedural ones. The work examines the elements of the rule of law, which are defined as mandatory in accordance with the provisions of the European Commission’s Doha «For Democracy through Law». At the same time, the principle of the rule of law is not exhausted only by these requirements and characteristics, as they are constantly evolving and complementing, and the conditions for their observance are also changing.Based on the analysis of the positions of scholars on the content of the rule of law, it was concluded that the principle of the rule of law is a universal and integral principle of administrative proceedings. According to the au-thors, the principle of the rule of law in administrative proceedings provides for the administration of justice with respect for constitutional rights, freedoms and legitimate interests of man and citizen, in order to protect them from wrongful violation and only in accordance with the Constitution and other laws of Ukraine. If the administrative court applies the provisions of legislative or other regulations that unfairly restrict or violate the rights, freedoms and legitimate interests of the person, or if they are interpreted in this way, the decision rendered in such a case must be declared invalid.
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Talyzina, Ya O., und I. A. Titko. „Ensuring the confidentiality of information about a person involved in criminal proceedings: selected issues and solutions“. Problems of Legality, Nr. 153 (16.06.2021): 104–18. http://dx.doi.org/10.21564/2414-990x.153.226520.
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The article highlights the problem of practical implementation of such a security measure that can be applied to participants in criminal proceedings, such as ensuring the confidentiality of personal information. It is analyzed the views diversity of investigators, prosecutors, judges and lawyers on the algorithm of application of ensuring the personal data confidentiality, on the issue of storage of resolutions (decisions) on the application of this security measure in criminal proceedings. The practice of conducting procedural actions in court with persons whose personal data have been changed is studied separately. The peculiarities of interrogation, identification with protected participants of criminal proceedings in the mode of videoconference and in a closed court session are studied. Previous attempts to solve this problem by developing a Model Instruction on conducting court proceedings with witnesses, victims and other participants in criminal proceedings, in respect of whom security measures have been taken, are considered. According to the analysis results of the domestic legislation on security of participants in criminal proceedings and identification of gaps, after conducting a survey of current investigators, prosecutors, judges and lawyers, the generalization of modern practice of criminal proceedings with the participation of protected persons is made. The purpose of this research is to formulate proposals for a unified and mandatory for all participants in criminal proceedings procedure for working with persons whose personal data are changed for security purposes at all stages of criminal proceedings. The expediency of enshrining at the bylaw level in a separate normative legal act an algorithm for carrying out procedural actions in court with participants in criminal proceedings, which would meet the requirements of current legislation, including the provisions of the Data Summary constituting a state secret, is substantiated.
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Uvarov, A. A., und A. A. Uvarov. „Legal Responsibility in Civil Society“. Russian Journal of Legal Studies 5, Nr. 1 (15.03.2018): 73–80. http://dx.doi.org/10.17816/rjls18351.
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The article discusses the various types of content and legal liability in civil society. In the analysis of the concept of positive responsibility points to the fallacy of its identification with a political responsibility. The legal effect of a positive responsibility can be interpreted as a principle or interest, which are designed to provide not only the rights and freedoms, but also the interests of citizens. It draws attention to the feature of responsibility to the state business community, which is sometimes interpreted broadly as a social responsibility, and in practice is often associated with the violation of the rights of business structures.The article proposes to eliminate the legislative gap regarding the responsibility of the representative body of local self-government to the population by including the relevant provisions on the use of a population of mandatory and advisory forms of responsibility to this body. Describing the action of public and corporate inf luence on violators of the relevant social norms, the authors show their distinctive features, highlighting the proactive, preventive nature of these measures with respect to measures of legal liability, the applicable public authorities.In conclusion, we discuss the various purposes of legal liability in civil society, draws attention to the ambiguity of the positive potential of the empowerment of civil society at the expense transferred by it of certain state functions, as outside the legal regulation remain many questions about the conditions and the adoption of these structures sometimes their illegal decisions.
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Luchyk, Svitlana, Maryna Semykina, Liudmyla Zapirchenko, Vasil Luchyk und Anna Semykina. „Priority of stimulating creative work in innovation management in the stage of globalization“. SHS Web of Conferences 129 (2021): 05006. http://dx.doi.org/10.1051/shsconf/202112905006.
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Research background: It is substantiated that outdated motivational management in practice hampers the tasks of accelerated innovative development of domestic enterprises. This leads to the destruction of motives for the development of innovations, the spread of poverty among workers, in particular among developers of new ideas and innovations. Purpose of the article: The article is devoted to the problems of modeling the process of motivational regulation of innovative activity of employees at the enterprise. Methods: Our conceptual provisions based on analysis and generalization of data of statistics of economic activity of innovatively active enterprises of Ukraine. Practical experience of personnel management based on motivational management, results of sociological surveys of personnel and involvement of experts’ conclusions the level of economic activity of staff and creativity in work. Findings & Value added: The proposed model of motivational regulation of innovation activity of employees is based on the mandatory identification and consideration of priority factors that enhance the incentive effect of remuneration for the creative component of work, increase innovation activity of staff and enterprises in general, increase its profitability, and competitiveness. The peculiarity of the presented model is its flexibility in the choice of motivational regulators depending on the goals of the enterprise, the presence of a block of choice of motivational priorities in regulating innovation, the possibility of adjusting its effectiveness taking into account the efficiency of innovation in the enterprise and the internal and external environment.
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Kolomoiets, Tatiana, Daria Yevtushenko, Oleksii Makarenkov und Maryna Tytarenko. „POLITICALLY EXPOSED PERSONS IN TERMS OF STATE FINANCIAL MONITORING: ARE THE MODELS OF THEIR REGULATORY DEFINITION SUCCESSFUL?“ Baltic Journal of Economic Studies 9, Nr. 5 (28.12.2023): 111–18. http://dx.doi.org/10.30525/2256-0742/2023-9-5-111-118.
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Given the recognition of the priority of the European integration and North Atlantic vectors of modern state-building and law-making processes in most countries of the world, the issue of "high terminological quality", "terminological purity", with the implementation of relevant international and European legal standards for the formation of "basic terminology", the basis for combating the legalisation of "dirty money" is not only relevant, but also of paramount importance, as it plays the role of "key provisions" of the entire regulatory framework. The purpose of the study is to analyse the existing international legal and European standards and national regulatory models for defining "politically exposed persons", with the aim of identifying "defects in their quality" and formulating proposals for their elimination. The object of the study is social relations directly related to the state financial monitoring of politically exposed persons. The subject of the study is the regulatory models for determining politically exposed persons in terms of state financial monitoring. The methodological basis was formed by both general scientific and special research methods, which made it possible to present a comprehensive cross-section of the relevant issue. Results. The "quality" of the regulatory definition of PEPs implies the following: a) consideration of international legal and European standards for preventing and combating the legalisation of "dirty money" as a "basis" for national thematic rulemaking; b) regulatory distinction between "main PEPs", with criteria that allow determining the "uniqueness" of their legal status, and "additional PEPs" (persons who do not have the main features of PEPs, but may potentially be involved in relations with them); c) "criterionality" of the "main PEPs" is directly related to the "influential" position and significant public functions performed by the person (it is mandatory to have these positions enshrined in the law, with the corresponding correlation of functions); d) delimitation of "additional PEPs", with the identification of those persons who are "related" by family and other relations with the "main PEP". For each category of such persons, the guideline is to standardise their list, which makes it impossible to vary the interpretation of the relevant provisions and diversify law enforcement practice.
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Mishchenko, Tatiana. „Anti-Corruption Audit: Concept, Types, and Elements“. Oblik i finansi, Nr. 1(103) (2024): 130–36. http://dx.doi.org/10.33146/2307-9878-2024-1(103)-130-136.
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The prosperity of corruption, especially during the war, is one of the threats to Ukraine's national security, political stability and economy. International audit practice shows that anti-corruption audit is an effective tool for combating corruption and financial fraud. The article aims to distinguish the concepts of anti-corruption audit and anti-corruption compliance, to disclose the types of anti-corruption audit and its elements, and to determine the place and role of anti-corruption compliance in detecting and preventing manifestations of illegal corruption actions. Based on the analysis of the essence, two types of anti-corruption audit are distinguished: internal and external, which makes it possible to determine their differences and areas of application. In scientific literature, anti-corruption audit is often equated with anti-corruption compliance, which, in our opinion, is a component of internal anti-corruption audit. This conclusion follows from the general interpretation provided by the International Compliance Association and from the ideology of compliance, which involves compliance with the internal policies and procedures of the business entity. The elements of an anti-corruption audit are defined based on the provisions of international normative acts, the specifics and requirements of the activities of international organizations; however, for Ukrainian practice, it is appropriate to distinguish its main and additional elements based on the specifics of the activities of business entities and public sector entities. The main elements are mandatory for private and public sector entities, and additional ones depend on the field of activity and the level of corruption risks in the surrounding environment. The interpretation of the term anti-corruption audit proposed in the article, the definition of its differences from anti-corruption compliance and the identification of its structural components will contribute to constructing an effective system of combating fraudulent and corruption schemes in the private and public sectors of the Ukrainian economy.
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Moya, Liao. „Piano Miniature as a form of Projection of The Pianist's Image Model in The Executive Contest“. Часопис Національної музичної академії України ім.П.І.Чайковського, Nr. 3-4(52-53) (14.12.2021): 133–45. http://dx.doi.org/10.31318/2414-052x.3-4(52-53).2021.251814.
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The traditions of the genre of piano miniature are generalized by the author in the context of the achievements of modern musicology. There is some bias in existing research. It is established that the main provisions of these works remain theses: miniature is a little-studied genre; miniature is studied and perceived as a secondary genre; miniature is an extremely popular genre in the work of composers and in performing practice; the miniature is a mandatory part of the competition repertoire. The author applied a comprehensive culturological, musicological and psychological approach to justify the formation of new forms of performance, quality system, features of the performer in the competitive sociocultural space of today. Varieties of "stage situations", regularities of their "repertoire solution" and determination of the role of miniatures in the competitive repertoire of modern pianists are identified and structured. The author has classified the main image models of the competitive performer, including: "universal" — demonstrates the ability of the performer to convincingly interpret any repertoire requirements; "academic" — the most common model of stage image and repertoire selection; "Intellectual" — involves the demonstration of selective musical professional preferences of the performer; "Virtuoso" — is reflected in the reproduction of various examples of virtuoso miniatures and, of course, the demonstration of virtuoso skills and abilities of the performer; "Patriotic" — is a reflection of certain personal beliefs of the performer; "Situational" — illustrates the tendency of the performer to adapt and realize themselves in accordance with certain subjective circumstances; "Outrageous" — built on the use of external visual and sound effects. A representative function of the miniature in the repertoire of the modern pianist has been established, aimed, among other things, at self-identification/identification of the performer. The classification of the main image models of the competitive performer, which illustrates the globalization processes in music performance, is carried out. The main conclusion of the study is that the attention of performers, in particular pianists, is drawn to the versatility of the plane on issues that arise in the formation of the repertoire, the specifics of interpretation and projection of selected works
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Mamonova, Valentyna, und Natalia Meush. „Legal Support of Financial Independence of Territorial Communities in Ukraine“. Reality of Politics 18, Nr. 4 (31.12.2021): 131–46. http://dx.doi.org/10.15804/rop2021408.
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The article provides a scientific analysis of the financial independence of territorial communities, which is aimed at strengthening the implementation of decentralization measures in Ukraine. Indicated that problems of financial support of the local government powers are the focus of Ukrainian scientists, experts in local budget management and finance. Independence in the aspect of local self-government should be considered within the norms established by the Constitution of Ukraine, the European Charter of Local Self-Government, and other legislative acts. Performed theoretical and applied identification of the “financial independence of the territorial community”. Analyzed the key provisions of the Ukrainian legislation on financial support of territorial communities, which were transformed in the process of decentralization during 2014–2020. Highlighted the state policy components of ensuring the financial independence of territorial communities, based on the principles of the European Charter of Local Self-Government. Measures of state policy to ensure the financial independence of territorial communities can be systematized into two groups: 1) direct participation of the state in the formation of financial resources of communities and territories; 2) indirect participation of the state in the formation of financial resources of communities and territories and their disposal. Noted that consolidation of revenue sources in local budgets of Ukraine is characterized by instability. Summarized the results of the sociological study of the financial support of territorial communities in terms of their financial independence. Emphasized the lack of legal opportunity for local governments to independently keep records of personal income tax and other national taxes in terms of their payers. Proposed the measures to improve the administration of taxes, which are a source of revenue to local budgets: organization of a digital information network on the payment of taxes and other mandatory payments by individuals and ensuring access to it by local government officials; establishing interaction of territorial bodies of the State Tax Service of Ukraine with local self- -government bodies on issues of control over the correctness and timeliness of tax payments and other obligatory payments by individuals and legal entities, etc.
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LEVITSKA, Svitlana, und Olga OSADCHA. „Harmonization of domestic and international practice for financial monitoring of the primary link of its implementation“. Fìnansi Ukraïni 2021, Nr. 7 (08.09.2021): 93–107. http://dx.doi.org/10.33763/finukr2021.07.093.
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The purpose of this study is both to summarize negative impact factors on cash flows legalization based on international and domestic practice of financial monitoring in the area of entrepreneurial activity and to determine effective measures directed at sustainable socio-economic national development of Ukraine. The main legislative rules, norms and principles of financial monitoring implementation by domestic economic entities, conceptual definitions of the Law of Ukraine 361-IX , objects and subjects of initial financial monitoring, criterias of the international practice of financial transactions monitoring are generalized. The role of current o361-IX in the systemic fight against money laundering risks by domestic entities is revealed. The need is substantiated for both thorough identification and verification of such risks based on the results of asset transactions defined by the law as “objects of financial monitoring” and search for complete and reliable information on the final beneficiary of initial financial monitoring subject. Alternative approaches to the internal regulatory development and working documents have been proposed for the initial financial monitoring subjects (on the example of audit firms) in order to ensure their financial monitoring consistency and full disclosure of obtained results. Initial financial monitoring subjects, guided by provisions of Law 361-IX , must have a number of internal administrative documents that take into account the nature and scale of transactions with counterparties/clients. Mandatory internal documents for initial financial monitoring subjects specify: financial monitoring rules, primary financial monitoring programs and other internal financial monitoring documents, documentation of personnel procedures for the responsible employee appointment and his powers, rights and responsibilities. These internal documents should contain procedures that ensure effective risk management, as well as prevent the use of services (goods, products) for the initial financial monitoring subject in order to legalize illicit income. The reward is the confidence that activities of initial financial monitoring subjects have become another foundation in national socio-economic development.
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KRYSHTOPA, Iryna, und Larysa NIKOLENKO. „Country-by-country reporting: international experience of implementation“. Fìnansi Ukraïni 2021, Nr. 6 (04.08.2021): 29–39. http://dx.doi.org/10.33763/finukr2021.06.029.
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Considering the tasks set for Ukraine in frames of combating tax evasion of multinational enterprises, it is extremely important to bring the provisions of national legislation in line with international rules of tax administration. This primarily concerns the creation of institutional conditions in order to increase the financial flows transparency of multinational enterprises for tax administrations and enable them to obtain necessary information for identifying and assessing transfer pricing risks.Nowadays, more than 100 countries prepare a country-by-country report of an international group of companies, which discloses data on activities of certain enterprises in accordance with the requirements of national legislation and the unified standard of country-by-country reporting, approved by the OECD [1]. However, the analysis of domestic practice of reporting by countries of international group of companies, as well as the study of other regulations, which application allows metropolitan countries to ensure the transparent level of taxation of their multinational corporations, indicates the need for further improvement of domestic mechanisms for counteracting tax base erosion and exchange of information obtained in the framework of international exchange. This fact actualizes a chosen research topic. It is revealed that information disclosed in country-by-country reports gives the possibility for tax administrations to assess high risks of transfer pricing. In turn, the development of the mechanism for ensuring confidentiality and appropriate use of such reports will oblige taxpayers to careful adhere to transfer pricing rules and mandatory tax information exchange. The investigation of international experience in frames of implementation of uniform standards for the disclosure of information on income distribution and tax payments suggests the importance of country-by-country reporting. And identification of main trends in the field of international initiatives on issues of disclosure of income distribution information by groups of enterprises brings Ukraine closer to the consistent implementation of this approach in practice of international groups of companies.
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Fedorova, S. N. „FORENSIC AS A SEPARATE TYPE OF EXPERT RESEARCH IN THE ECONOMY“. Proceedings of the Southwest State University 21, Nr. 6 (28.12.2017): 143–49. http://dx.doi.org/10.21869/2223-1560-2017-21-6-143-149.
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The article considers the term "forensic", new for Russian economic theory and practice, that means "forensic science" from English. Its importance and implementation is justified by the increasing number of cases of widespread financial fraud. Forensic is just intended for their regulation and prevention. The conducted systematization of scientific publications testifies to the accumulation and theoretical generalization of materials that provide the basis for the formation of forensic as a separate type of expert research. Forensic is a certain niche in the professional sphere and is endowed with such mandatory attributes as rationality, neutrality and independence. The main goal of the forensic investigation is the disclosure of fraud, in general which includes the identification of those involved, the formation of evidence base, the establishment of facts and mechanisms of fraudulent activity. Forensic is held at the invitation of managers, investors and shareholders to identify not only additional resources, but also possible risks of the organization. It is indicated that underground economy, fraudulent activity can serve as an object of forensic. The forensic classification is proposed for corporate (internal) and forensic counterparties (external). In addition, we should pay attention to a rather new direction in the field of computer forensics with a similar name - forensic, which can be part of the forensic investigation. It is revealed that experts in the field of forensic use to a greater extent accounting and auditing procedures in their activities. Despite the forensic similarity to the audit and forensic accounting expertise, there are still distinctive features that are discussed in the article. Spheres of additional knowledge necessary for a specialist to work in the field of forensic are: sociology, psychology, criminal law, business law, law enforcement, business and finance, information systems, communism. It is concluded that the consolidation at the legislative level of the main provisions and standards concerning specialists in the field of forensic is necessary in the current conditions of management.