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1
Grundmann, Stefan. "Costs and benefits of an optional European sales law (CESL)." Common Market Law Review 50, Special Issue (March 1, 2013): 225–42. http://dx.doi.org/10.54648/cola2013045.
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This contribution assesses the proposed Common European Sales Law (CESL) and its potential to enter into a fruitful competition with national laws ("Optional Scheme") against the background of a more general theory on vertical regulatory competition - drawing on the much richer theory of horizontal regulatory competition (namely concerned with Delaware). It does so along three lines of arguments: (i) Regulatory vertical competition, on a level playing field, has the potential to combine advantages of centralized rule-setting and decentralized rule-setting, but fails to do so in the case of this proposal. (ii) Regulatory vertical competition is in danger of being distorted by the central rule-setter when this rule setter not only makes one of the offers, but also arranges the conflict of laws rules and potentially even does in a way which favours its own offer - and this has been done in CESL. This kind of distortion of competition leads to the effect that parties may make choices not according to substantive law quality of the set of rules chosen, but because only one set profits from particularly advantageous rules of choice (reduction of transaction costs and economies of scale etc.). Finally, (iii) regulatory vertical competition may potentially lead to positive network effects of such importance that the set of rules proposed by the central rule setter, in fact, even though being optional only discards competitors altogether nevertheless. This may be an explanation of how the Delaware effect works and this may lead to a situation in which the 'external competition' of an EU Contract Law - with the national legislatures - is no longer strong enough. Therefore in the last two sections, the question is asked (i) how best to arrange 'internal competition' about the best ideas and the best schemes for an EU Contract Law Code and (ii) how to gain time for doing so (interim alternatives which would equally allow to realize most of the benefits which the adoption of CESL is aimed at). Based on all three lines of arguments, the paper strongly favours - as a minimum requirement - the transition for all national laws to an unrestricted home country principle for consumer sales, namely in e-commerce transactions.
2
Wagner, Gerhard. "Article 6 of the Commission Proposal: Violation of Privacy - Defamation by Mass Media." European Review of Private Law 13, Issue 1 (February 1, 2005): 21–37. http://dx.doi.org/10.54648/erpl2005002.
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The Commission?s Proposal for a Regulation on the Law Applicable to Non-Contractual Obligations (Rome-II) supplies a special conflicts rules for media torts and other invasions of privacy rights. The purpose of Article 6 of the Commission Proposal is to coordinate choice of law and forum selection. This objective deserves support but is difficult to specify and to translate into choice of law rules. Article 5 No. 3 Brussels-I Regulation establishes jurisdiction not only at the place where the injury was sustained, but alternatively at the place where the wrongful act occurred. Pursuant to the holding of the Shevill judgment of the European Court of Justice the court sitting at the place of the wrongful act has jurisdiction to award damages in full, for total harm, whereas the courts at the several places of injury may allow remedies only with respect to the harm suffered within the confines of their own jurisdiction. In contrast to the explicit intentions of the Commission, its proposal on conflicts law does not provide for a similar rule, i.e. it does not supplement the jurisdictional principles of the Shevill judgment with similar choice of law rules. The same failure, however, also affects the proposal of the European Parliament, laid down in the report of Diana Wallis, prepared for The Parliament Committee on Legal Affairs and the Internal Market. The prerogative of ?Gleichlauf? requires choice of law rules which allow the courts seized either at the place of publication or at the place of injury to apply their own law, i.e. the lex fori.
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HERVEY, Tamara, and Anniek DE RUIJTER. "The Dynamic Potential of European Union Health Law." European Journal of Risk Regulation 11, no. 4 (September 4, 2020): 726–35. http://dx.doi.org/10.1017/err.2020.70.
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Some understandings of European Union health law are based on a presumption of law as a static and closed system. This approach to the Union as a legal entity has important ramifications. The Union is a political system created by and subject to the rule of law. Its successes (and failures) are attributable to the legalisation of solving externalities and ensuring Member State solidarity to gain benefits from integration. Member States, which create and sustain the Union by repeated acts of sovereign choice, choose to subject themselves to the rule of (Union) law. This protects both the Member States and the Union institutions (imperfectly, but nonetheless) from charges of illegitimacy. While recognising the benefits of such an approach to European Union integration and law-making, we take the view that law also has an important dynamic potential. That dynamic potential is inherent in all law, for law is embodied in text, and always open to interpretation, as the external contexts that give legal text meaning in the real-world change through time. We trace the dynamic potential of Union health law by looking at its legal basis to its foundational Treaties, and we plot its trajectory going forward.
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Rutgers, Jacobien. "Choice of Law in b2b Contracts: the Law of the Jungle." European Review of Contract Law 14, no. 3 (September 6, 2018): 241–68. http://dx.doi.org/10.1515/ercl-2018-1014.
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Abstract Is the law of the jungle the guiding principle with respect to choice of law clauses in international contracts between businesses (b2b contract)? Does a choice of law imply the rule of the strongest party? These and other questions are discussed in the light of 18 exploratory qualitative interviews with Dutch senior practising lawyers (advocaten). Lawyers were interviewed, since it is often presumed that they play an important role with respect to a choice of law in the pre-contractual phase. However, the perception of lawyers with respect to a choice of law is underresearched. The interview findings are discussed and compared to the data concerning a choice of law in the context of the debates about a common European contract law, regulatory competition, self-enforcing contracts and the legal origin theory. Finally, questions for future research are formulated. For instance, in the empirical research conducted sofar, no specific attention has been paid to small and medium sized businesses. Had they been considered, the outcome could have been different. The same may be said with respect to the different business sectors and the countries where the companies are established.
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Garriga Suau, Georgina, and Christopher A. Whytock. "Choice of law for immovable property issues: new directions in the European Union and the United States." Revista española de derecho internacional 74, no. 1 (January 25, 2022): 81–108. http://dx.doi.org/10.17103/redi.74.1.2022.1b.01.
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In both the European Union and the United States, it is a dynamic period for private international law regarding immovable property issues. The predominant approach has been that these issues are governed by the lex rei sitae —that is, the law of the State where the immovable is located. However, through a comparative examination of recent EU Regulations on succession, matrimonial property regimes, and the property consequences of registered partnerships, and of the new Third Restatement of Conflict of Laws project in the United States, this article shows that on both sides of the Atlantic there is a trend toward reducing the scope of the lex rei sitae rule. It explores both the reasons for and the challenges posed by this trend. It also reveals that despite this trend, the lex rei sitae rule nevertheless persists in relation to certain «core» immovable property issues.
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Alihodžić, Jasmina. "THE GENERAL RULE ON CHOICE OF LAW FOR NON-CONTRACTUAL OBLIGATIONS IN LEGISLATION OF EUROPEAN UNION AND BOSNIA AND HERZEGOVINA." Journal Human Research in Rehabilitation 4, no. 1 (January 2014): 24–31. http://dx.doi.org/10.21554/hrr.011405.
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The project of unification of private international law on the level of European Union encompassed bringing of unique choice of law rules, among others, in the area of non-contractual obligations with international element. A communitarian legislator chose a set of flexible choice of law rules that enable satisfaction of the principle of legal certainty together with the establishment of a balance between persons claiming to be liable and sustaining damage. PIL Act that is being enforced in Bosnia and Herzegovina in relation to the subject of this paper alternatively determines the law applicable to non-contractual obligations, according to the law of the place where the harmful act was done or the law of where the consequence occurred, depending on which of these two laws is more favorable to the person sustaining damage. The author of this paper points out the evident discrepancy in the general rules of determination in EU legislation and Bosnia and Herzegovina, and the need to harmonize legislation in this field with the acquis communautaire, arising from the Stabilization and Association Agreement.
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Bobek, Michal. "Why Is It Better to Treat Every Provision of EU Directives as Having Horizontal Direct Effect?" International Journal of Comparative Labour Law and Industrial Relations 39, Issue 2 (June 1, 2023): 211–20. http://dx.doi.org/10.54648/ijcl2023014.
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The provisions of EU directives do not have horizontal direct effect. This contribution explains how that initial choice and statement made by the Court of Justice of the European Union in Marshall came to be gradually undermined by the numerous exceptions to this rule. If viewed together, they make one wonder about the nature of the present-day rule and the exceptions, in particular in areas like employment law or various aspects of prohibition of discrimination. This leads to the advice that could be given to national practitioners, puzzled about the present-day normative impact of directives in horizontal relationships: after the lapse of the transposition period, it is prudent to treat every provision of a EU directive as having horizontal direct effect. Court of Justice of the European Union, Marshall, Normative Impact of Directives, Employment Law, Horizontal Direct Effect
8
Campbell, Mat. "Subsidiarity in Private Law?" Edinburgh Law Review 24, no. 1 (January 2020): 1–25. http://dx.doi.org/10.3366/elr.2020.0597.
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This is the first English language paper seriously to examine the meaning of subsidiarity from the perspective of private law, in which it might be used to understand legal rules, or the interaction of different kinds of claim. Since there are so few relevant sources in English, this article casts a wide net for consensus. It offers six propositions about what it means to designate a rule or relationship (between legal regimes, say) as one of subsidiarity. These are formulated by reference, principally, to thinking about subsidiarity outwith private law; and, secondarily, to (i) miscellaneous literature about subsidiarity, (ii) the general French private law literature about subsidiarity, and (iii) what little can be gleaned from relevant unjust enrichment discourse in English. The state of play in that discourse is summarised, before the choice of Roman Catholic social teaching, European Union law, and European human rights law as settings to examine for their conceptions of subsidiarity is explained, and subsidiarity in each of these contexts is sketched out. Succeeding sections then outline each proposition, and clarify how it may be derived from the sources. The paper concludes by reflecting guardedly on the potential of subsidiarity in private law, as a way to model the interrelation of private law claims and doctrines.
9
Downes, Noemí, and Helmut Heiss. "Non-Optional Elements in an Optional European Contract Law. Reflections from a Private International Law Perspective." European Review of Private Law 13, Issue 5 (October 1, 2005): 693–712. http://dx.doi.org/10.54648/erpl2005042.
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The EC Commission is considering the enactment of an optional instrument of European Contract Law. From a common market perspective such instrument will only be successful if it covers areas of mandatory law (consumer protection and insurance). A fundamental question relates to the regulatory model that could be used to provide parties with an option to choose the instrument. Legal literature proposes a change of Art. 3 para. 1 of the Rome Convention to the effect that an optional instrument may be chosen as the lex causae of a contract. There are, however, several technical problems making this regulatory model burdensome. This is particularly true with an optional instrument covering areas of mandatory law (?non-optional elements?). A second model would be to implement a rule on direct applicability similar to Art. 1 para. 1 lit. a) CISG. However, since a European optional instrument would cover all types of contracts, it would be very hard if not impossible to find a proper rule of direct applicability for all possible cases. Therefore, an optional instrument should simply be enacted as an EC regulation establishing substantive contract law that is directly applicable in all member states and providing parties with an option. The choice granted in the optional instrument would thus depend on the applicability of the law of an EC member state to the contract. An analysis shows that such a regulatory approach would produce the best results.
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Bender, Philip M. "Limits of Personalization of Default Rules." European Review of Contract Law 16, no. 3 (September 8, 2020): 366–409. http://dx.doi.org/10.1515/ercl-2020-0021.
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AbstractThe ‘personalization of the law,’ based on new technological possibilities such as algorithmic analysis of Big Data, is said to be the wave of the future. Especially default rules seem to be particularly apt for personalization, because they are – at first glance – supposed to mirror what the parties would have wanted. This article aims to unveil the limits of preference-based personalization of default rules. In the first part, I attack default rule personalization on theoretical grounds. I analyze the theoretical underpinnings of default rule personalization, which I describe as ‘empirical subjectivism,’ and I challenge this position with arguments from classical and behavioral law and economics. I thereby develop the opposite explanatory model: ‘normative objectivism.’ The arguments presented also provide new insights of default rule analysis which are valid well beyond the personalization debate. The ‘default rule paradox,’ ‘pushing vs pulling default rules,’ or the analysis of default rules as ‘property rules’ and as ‘rules of civility’ are some examples. In the second part, I attack default rule personalization on constitutional grounds with particular focus on the Constitutions of the United States and Germany, as well as the European Charter of Fundamental Rights. So far, neither default rules nor personalization have received a detailed analysis based on constitutional principles. My article provides this analysis with regard to the principles of freedom and equality. I show how personalization reduces freedom in the private and public sphere, because the so-called choice- or agency-dimension of freedom will be significantly limited. In broader terms, the paternalistic tendencies of personalization will trigger the replacement of the ‘entrepreneur’ and ‘citizen’ by the ‘consumer’ as role-model of societal organization. Economically, this development will be accompanied by a shift from capitalism to what I call ‘micro-socialism.’ With regard to the principle of equality, I analyze how personalization leads to inequality by distinguishing ‘intra-preference-classifications’ and ‘inter-preference-classifications.’ I then present justification problems, especially with regard to discriminations that trigger strict and intermediate scrutiny. Finally, I sketch out how personalization would dissolve the essence of the principle of equality and thereby trigger a shift ‘from contract to contact’ or ‘from association to accumulation,’ which is no less important than the previous societal shift ‘from status to contract’ or ‘from community to association.’ In sum, the article combines different discourses around default rules, personalization, and constitutional law, and thereby provides new insights in each of them.
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Vovk, Dmytro. "Religious Freedom Against the Background of the Ukrainian-Russian War: Some Legal Aspects." Religious Freedom 1, no. 19 (August 30, 2016): 106–13. http://dx.doi.org/10.32420/rs.2016.19.1.946.
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This essay deals with various issues of religious freedom and state-church relations that arose during and in connection with the Revolution of Dignity and the military and political conflict between Ukraine and Russia. I do not propose any completed answers, but I rather formulate the question which answers need, based on the fact that one of the reasons that led to both EuroMaydan and the annexation of the Crimea and the war on the Donbass is the European choice of Ukraine. This choice does not only mean the institutional integration of Ukraine into certain European structures. First of all, it predetermines the perception by the Ukrainian society and the state of a certain set of legal values (the rule of law, democracy, respect for human rights, etc.) and related values and principles that must be embodied in domestic law and order. It should also be emphasized that the following considerations are considerations of a lawyer. I do not have sufficient qualifications for religious or political analysis, and I propose only a look at the religious freedom and relations between the state and the church, which focuses on the above legal values.
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Horne, Cynthia M. "International Legal Rulings on Lustration Policies in Central and Eastern Europe: Rule of Law in Historical Context." Law & Social Inquiry 34, no. 03 (2009): 713–44. http://dx.doi.org/10.1111/j.1747-4469.2009.01162.x.
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The transitional justice literature highlights various trade‐offs involved in the choice and implementation of lustration as a transitional justice measure in Central and Eastern Europe. This article examines how international legal body rulings on lustration laws have interpreted rule‐of‐law versus justice concerns. The European Court of Human Rights and the International Labour Organization have explored possible information problems, due process violations, employment discrimination issues, and bureaucratic loyalty concerns within the context of lustration. Three findings emerge from their legal rulings. First, contrary to popular notions, international legal bodies are not antilustration. The institutions are engaging with questions regarding the fair implementation, not the legality, of lustration laws. Second, the prioritizing of justice concerns during the transition efforts is highlighted as a way to lay a strong democratic foundation. Third, the organizations have emphasized the importance of placing rule of law in historical context, thereby situating post‐Communist societies within other posttotalitarian regime‐building narratives.
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Paskalia, Vicki. "Co-ordination of Social Security in the European Union: An Overview of recent case law." Common Market Law Review 46, Issue 4 (August 1, 2009): 1177–218. http://dx.doi.org/10.54648/cola2009048.
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This overview covers the case law of the Court of Justice in the field of social security law during the last five years. The overview shows that the most usual issues were about exportability of benefits, in particular special non-contributory benefits, and calculation of contributions. It shows further that important developments have occurred in several fields of the co-ordination law but also that considerable confusion and gaps continue to exist. Among the most sensational developments must be counted the establishment of the rule that even restrictions to exportability of special non-contributory benefits can be contrary to the free movement provisions of the Treaty, if they entail an unacceptable degree of unfairness, as well as about reimbursement of medical costs for treatment in another Member State despite lack of previous authorization. Considerable confusion continues to exist with regard to the choice of law principles, while the co-ordination law contains gaps with regard to calculation of contributions, when income is made in several Member States. Furthermore, it is shown that the determination of the material scope of Reg. 1408/71, especially when it comes to benefits related to care, continues to be a complicated issue.
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Feshti, Marsida, and Jurgen Golemi. "The impact of the European Court of Justice on the principle of proportionality." SEER 23, no. 1 (2020): 127–36. http://dx.doi.org/10.5771/1435-2869-2020-1-127.
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One of the most important principles of EU administrative law is that of proportionality. The principle of proportionality is defined in Article 5 of the Treaty on European Union (TEU), but the legal concept has been recognised by the European Court of Justice since the 1950s as one of the general principles of EU law. Proportionality regulates the exercise of authority in terms of adjudicating whether the actions undertaken by EU institutions are within set limits. According to this rule, the action of institutions should be limited to that which is necessary to achieve the objectives of the treaties. In other words, the degree of action by the institutions must be in line with the goal being pursued. This article starts with an analysis of the meaning of proportionality, drawn from the approaches in practice of EU judges, and proceeds to an examination of the three types of issues that can be detected from their judgments: cases involving discretionary political choice, or which are of a social, political or economic nature; those related to the violation of rights under EU law; and those involving a disproportionate fine or imposition.
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Yablunovska, K. "EUROPEAN STANDARDS FOR THE RIGHT TO FREEDOM OF MOVEMENT AND RIGHT TO FREE CHOICE OF RESIDENCE." Bulletin of Taras Shevchenko National University of Kyiv. Legal Studies, no. 115 (2020): 63–68. http://dx.doi.org/10.17721/1728-2195/2020/5.115-13.
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The article examines the system of standards for the right to freedom of movement and the right to free choice of residence that exist in the European Union. A wide range of general and special legal methods and techniques of scientific knowledge are used, in particular: comparative law, systemstructural and formal- dogmatic research methods, as well as the methods of scientific knowledge (analysis and synthesis, induction and deduction, classification, etc). As a result of the study, the author substantiates the scientific position that the existing system of standards for the right to freedom of movement and the right to free choice of residence in Ukraine only partially meets the standards of these rights that exist in EU member states. The difference between these standards exists on the level of specifics of legal regulation for the implementation of these human rights by family members of citizens of EU member states, as well as the goals pursued by the implementation of relevant standards. Bringing Ukrainian standards of these human rights in line with European counterparts involves rule-making activities of public administration. The source of such rule-making should be Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (2004). The effectiveness of bringing Ukrainian standards for the right to freedom of movement and the right to free choice of residence in line with EU standard will be increased significantly if the public administration has standards for legal regulation of relations between it and individuals in the process of exercising these rights by the latter. In our opinion, the Allgemeine Verwaltungsvorschrift zum Freizügigkeitsgesetz / EU (AVV zum FreizügG / EU) (General Administrative Code of the Law on Freedom of Movement of Citizens) can be considered as such a standard, as it is created in strict accordance with the EU Directive and other EU legal acts
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Knöfel, Susanne. "EC Legislation on Conflict of Laws: Interactions and Incompatibilities between Conflicts Rules." International and Comparative Law Quarterly 47, no. 2 (April 1998): 439–45. http://dx.doi.org/10.1017/s0020589300061935.
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Formerly, EC activity in the area of private law used to be content with approximating member States' substantive laws in specified areas, and, therefore, eventual conflictual implications demanded considerable interpretative efforts. Modern Community legislation, however, increasingly complements the intended substantive-law harmonisation with provisions on conflict of laws. Given the existence of the (Rome) Convention on the Law Applicable to Contractual Obligations, implemented in the United Kingdom by the Contracts (Applicable Law) Act 1990, this new tendency, where it concerns areas falling within the Convention, raises complex questions on both legislative technique and policy. The Convention, in Article 20, expressly reserves the precedence of Community choice of law rules. However, merely to point to this priority rule appears to be too simple a solution as conflicts, before being solved, have to be defined, and that is what this article aims at. Further, as an analysis that deals with European law would be incomplete without taking into account the impact on member States' law, reference will be made to domestic English and, for the purposes of comparison, to domestic German law. The latter appears to qualify for such a comparative approach because, due to the Rome Convention already having been part of the domestic law for a considerable period, certain experience might be expected within that legal system in dealing with contract conflicts issues thereunder.
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Asaturov, Sergey, and Andrei Martynov. "THE RESURGENCE OF NATIONALISM: THE BREAKUP OF YUGOSLAVIA." EUREKA: Social and Humanities, no. 5 (October 11, 2020): 39–42. http://dx.doi.org/10.21303/2504-5571.2020.001440.
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The choice between modern nation-building and integration into supranational European and Euro-Atlantic structures remains a strategic challenge for the Balkan countries. Success in solving this problem of predominantly mono-ethnic Croatia and Slovenia has not yet become a model to follow. Serbian and Albanian national issues cannot be resolved. Serbia's defeat in the Balkan wars of 1991–1999 over the creation of a "Greater Serbia" led to the country's territorial fragmentation. Two Albanian national states emerged in the Balkans. Attempts to create a union of Kosovo and Albania could turn the region into a whirlpool of ultra-nationalist contradictions. The European Union has started accession negotiations with Albania, Bosnia and Herzegovina, the Republic of Northern Macedonia, Serbia and Montenegro. The success of these negotiations depends on the readiness of the EU and the ability of these Balkan states to adopt European norms and rules. The accession of all Balkan nation-states to the European Union must finally close the "Balkan window" of the vulnerability of the united Europe. Nation-building in the Balkans on the basis of ethnic nationalism sharply contradicts the purpose and current values of the European integration process. For more than three decades, the EU has been pursuing a policy of human rights, the rule of law, democracy and economic development in the Balkans. The region remains vulnerable to the influences of non-European geopolitical powers: the United States, Russia, Turkey, and China. The further scenario of the great Balkan geopolitical game mainly depends on the pro-European national consolidation of the Balkan peoples and the effectiveness of the European Union's strategy in the Balkans.
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Bouček, Vilim. "Smjernice u postlisabonskom europskom međunarodnom privatnom pravu." Zbornik Pravnog fakulteta u Zagrebu 72, no. 3 (June 30, 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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Nikitenko, O. I. "Legal bases of activity of law enforcement bodies in the field of security in border areas of Ukraine." Legal horizons, no. 26 (2021): 93–96. http://dx.doi.org/10.21272/legalhorizons.2021.i26.p93.
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This article is intended for the theoretical foundations of the strategy of security in the border areas of Ukraine by law enforcement agencies. Law enforcement agencies are existing in society and the state institutions and organizations that perform law enforcement and law enforcement functions whose main task is to ensure security in the border areas of Ukraine. At the current stage of development of Ukraine as a democratic social and legal state, taking into account the recent global changes in the world, the development of law enforcement agencies to ensure national and internal security from internal and external threats is one of the priorities of European policy. The choice of the population of Ukraine highlighted the problem of implementation of ratified agreements with the European Union, including the provisions of the European Charter in the field of security in the border areas of the state, as important components of the political and legal system of Ukraine. Ensuring state security, protection of the state border and protection in the border area of Ukraine in accordance with the Constitution of Ukraine is entrusted to military formations and law enforcement agencies of the state. The state pays special attention to improving the legislation in the field of administrative and legal regulation in the field of national and internal security of the state from internal and external threats. The formation of the scientific doctrine of the scientific order in Ukraine has its own difficult history. Maintaining and strengthening the rule of law in society in modern conditions, as a necessary prerequisite for the effective functioning of an extensive human rights mechanism with the participation of state institutions, law enforcement agencies, civil society require thorough doctrinal support.
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Weller, Matthias. "Portable Antiquities in the Modern European Context: Law, Ethics, Policy and Practice (Pecz, Hungary, July 12–13, 2007)." International Journal of Cultural Property 15, no. 4 (November 2008): 417–19. http://dx.doi.org/10.1017/s0940739108080351.
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July 12–13, 2007, the Institute of Art and Law, Leicester, invited numerous experts to an international meeting at Pecz, Hungary, about the legal and ethical issues of portable antiquities in Europe. Norman Palmer (Barrister, King's College, London) introduced the participants to the questions revolving around treasure trove and the various ways to legally structure claims for recovery of portable antiquities under both public and private law. In particular, he addressed the issue of interdependencies between potentially strong substantive law on treasure trove or protection of cultural property on the one hand and limits of implementation of such rules in cross-border cases on the other hand. Jeremy Scott (Withers LLP, London) further illustrated this issue with reference to the most recent English cases of Iran v. Berend—no renvoi in English choice of law on moveable property and (if there were renvoi) no lex originis under French choice of law—and Iran v. Barakat—no application of foreign public law such as Iranian patrimony law by English courts. In the meantime the latter case has been reversed on appeal. Kurt Siehr (Max-Planck-Institute for Private International and Foreign Law, Hamburg) outlined the mechanisms offered by community law, in particular under Directive 93/7/EEC, for the protection of cultural property of member states vis-à-vis other member states. Zsolt Visy (Pecz University) demonstrated the typical difficulties of the protection of archaeological objects found in the ground but illegally exported with reference to the highly problematic history of the Sevso Treasure. Visy also underlined the fact that most legal remedies depend on the precise attribution of the moveable object in question to a certain state. In the following a tour de raison was offered through various national legal systems on how treasure trove is regulated and to what extent claims for recovery of antiquities can be raised. Weller pointed to the peculiarity under German law that the rules on treasure trove are rather unsophisticated compared to the voluminous statutory regimes in other states and that the competency to rule on treasure trove primarily lies with the states of the Federal Republic of Germany—a situation that necessarily results in a variety of solutions. Although many rules of general nature supplement the regime of treasure trove under German law, the law on treasure trove appeared to be a suitable object for unification on the federal level, and on this occasion the protection of archaeological objects found in the ground should be strengthened. In the second part of the meeting, Guido Carducci (UNESCO, Paris) presented a comparison between the regimes of claims for recovery of antiquities under the 1970 UNESCO Convention and the 1995 UNIDROIT Convention. Patty Gerstenblith (DePaul University, United States) commented on the interaction between foreign patrimony law and domestic criminal prosecution under the National Stolen Property Act with reference to the famous case in US v. Schultz. In the following round table talk with Kurt Siehr, Jeremy Scott, and Weller, the crucial issue of the application of foreign public law such as patrimony law was discussed from a comparative perspective; and Weller drew the attention to the 1975 Wiesbaden Resolution on the Application of Foreign Public Law of the Institute of International Law, by which the world leading conflicts scholars of the time had already agreed on the principle that there was no good reason a priori to exclude foreign public law from its application by a domestic court. Further presentations on the relevance of soft law, codes of ethics, and practical issues of archaeological excavations provided a comprehensive picture of the legal and ethical issues of portable antiquities in Europe.
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Martinico, Giuseppe. "Dating Cinderella: On Subsidiarity as a Political Safeguard of Federalism in the European Union." European Public Law 17, Issue 4 (December 1, 2011): 649–60. http://dx.doi.org/10.54648/euro2011042.
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The aim of this article is to provide a brief overview of the debate on the subsidiarity principle. Subsidiarity is one of the most ambiguous and debated notions in law, and it definitively belongs to all the legal disciplines, from EU law to constitutional and administrative laws, passing through human rights law. The debate on this principle has been enriched recently by a number of articles and books focused on the new provisions concerning national parliaments included in the Lisbon Treaty. When dealing with subsidiarity, the impression, at the first glance, is that of a Cinderella principle because of its evanescent nature (rule or principle?) and of its difficult justiciability. This article suggests that just a strong change in the European Court of Justice's (ECJ's) case law might transform our Cinderella into a real constitutional principle. Despite the vast existing literature, I have decided to focus on a few, in my view, fundamental readings on this point by attempting to describe the noble design behind the introduction of the subsidiarity principle in EU law and the re-evaluation of the weight of this concept in the practice of courts. In doing so, I started from the recent contribution of Robert Schütze, in Chapter 5 of his book, From Dual to Cooperative Federalism: The Changing Structure of European Law, which defines subsidiarity as a 'political safeguard' of EU federalism. The first part of this article thus will be devoted to the analysis of this work. As will be evident after a few lines, I share the comparative approach chosen by Schütze, but despite this methodological convergence, our conclusions are different. In the second part of this article, I will try to show how the interpretation of subsidiarity, as followed by the ECJ, is misleading and, consequently, how the choice of the Lisbon Treaty to rely on the national parliaments as the most suitable watchdogs of subsidiarity has to be regarded as unsatisfactory.
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Somai, Miklós, and Zsuzsánna Biedermann. "Brexit: Reasons and challenges." Acta Oeconomica 66, s1 (December 2016): 137–56. http://dx.doi.org/10.1556/032.2016.66.s1.8.
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This paper reviews the deeper societal and economic reasons behind the British choice of leaving the European Union. We address the detailed results of the referendum and the long-standing sceptical British attitude towards European integration; next, we analyse the net budgetary contribution that changed enormously after the Eastern Enlargement. It is argued that the rise in the immigrantnative ratio had a significant impact on employee’s pay level in certain areas, therefore pro-Brexit campaigners highlighted migration as one of the major problems arising from EU membership. Increasing income and wealth inequalities and a growing anti-elite sentiment in British society, coupled with the negative image of Brussels bureaucrats and a British approach to the rule of law that is fundamentally different from the continental one, also contributed to the final result of the referendum. Our analysis ends with a glimpse into the close future, emphasising that the future of British-EU relations depends wholly on the pragmatism and wisdom of the negotiating parties.
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Quartey, Michael K., and Theophilus Edwin Coleman. "The Law Applicable to Tortious Liability: a Comparative Analysis of Article 4 of The Rome II Regulation and Private International Law in Ghana." Journal of Comparative Law in Africa 10, no. 1 (2023): 1–40. http://dx.doi.org/10.47348/jcla/v10/i1a1.
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The law applicable to tortious liability involving a foreign element has become one of the most vexed questions in private international law. This can be attributed to technological advancements and the movement of people and goods across state lines. Accidents involving a foreign element are, therefore, reasonably foreseeable. Torts such as online defamation, accidents involving self-driving vehicles, and other technological acts involving a foreign element have heightened the possibility of cross-border torts. Considering the complexities associated with cross-border torts, the European Union (EU) has enacted the Rome II Regulation. The overarching objective of enacting the Rome II Regulation is to promote certainty and predictability when dealing with cross-border disputes, irrespective of the country of the court in which an action is brought in the EU. Conversely, Ghana relies on the broadly drafted section 54 of the Courts Act 459 of 1993 and common law principles of private international law to determine the aspects of choice of law. This has made the position in Ghana very uncertain and unpredictable due to the broad discretion given to courts under section 54 of the Courts Act, particularly in determining the law applicable to cross-border tort cases. Also, Ghanaian courts have applied the much-criticised double actionability rule to determine the rights and obligations of parties in cross-border tort cases. In light of the uncertain and unpredictable nature of Ghanaian law, some academics have suggested that Ghana adopt the traditional rule to determine the applicable law in torts. This article seeks to critically analyse the applicability of article 4 of the Rome II Regulation regarding non-contractual liabilities. The article compares how courts in EU member states have applied article 4 to determine the applicable law in torts, to how the Ghanaian courts use private international law rules to determine the applicable law in torts. The essence of the comparison is to ascertain whether Ghana can draw some legislative and judicial lessons from the position under article 4. In addition, the significance of the comparison is to determine whether the approach under the Rome II Regulation can serve as a basis for legal reforms in Ghana. Most importantly, the article explores the extent to which the legal approach under the EU law can bolster judicial certainty and predictability in Ghanaian law.
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Liuba, Оlena. "UKRAINE AND SERBIA: A LONG WAY TO EUROPEAN INTEGRATION." 39, no. 39 (July 10, 2021): 108–17. http://dx.doi.org/10.26565/2220-8089-2021-39-14.
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The article considers the stages and features of the European integration process in Ukraine and Serbia. It is noted that insurmountable corruption, economic problems, violations of the territorial integrity of these states hinder the successful implementation of reforms. This in turn complicates the way for the countries to obtain EU membership. The reasons and conditions under which the Ukrainian and Serbian states today aspire to join the European Union are analyzed. It is emphasized that peace, security and stability are considered key achievements of European integration on the continent. It is noted that the awareness of their civilizational belonging to Europe, the desire to achieve a European level of social life, the need for security, protection against terrorism, etc. actualize the movement of these states in the proclaimed strategic direction. At the legislative level, Ukraine affirms its geopolitical affiliation with the common European space. It shares the common values of democracy, the rule of law, shows respect for international law and human rights, and is committed to upholding these values in every possible way. The prospects of Ukraine's accession to the EU are determined and it is concluded that the conscious European choice of our country is a response to the demands of the time. Presently, to preserve and assert its place in the European dimension, Ukraine should not only show determination in its declared intentions for European integration but also demonstrate strong political will, fulfill its commitments and take an active position in defending its own interests. The main tasks facing the country today are resolving territorial disputes (Crimea, certain districts of Luhansk and Donetsk regions), ending the armed conflict in eastern Ukraine, overcoming corruption, and implementing reforms which are urgent for the country. Addressing these key issues will greatly facilitate Ukraine's progress towards the EU.
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De Vries, Gerard. "Right to Specific Performance: Is There a Divergence between Civil- and Common-Law Systems and, If So, How Has It Been Bridged in the DCFR?" European Review of Private Law 17, Issue 4 (August 1, 2009): 581–97. http://dx.doi.org/10.54648/erpl2009039.
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ABSTRACT: Civil- and common-law systems are asserted to treat the right of a party to a contract to specific performance in quite different ways: in civil-law systems, this right seems to be a fundamental right of a creditor, emanating from the adagium ‘pacta sunt servanda’ itself; common-law systems, on the contrary, are supposed to grant this action to the creditors only in the exceptional case that their usual remedy, damages, would not achieve appropriate justice. One might expect that this well-known divergence between the before-said law systems has posed quite a problem to the draughtsmen of the Draft Common Frame of Reference (DCFR); since it is to serve as an international instrument, unitary rules were needed, and therefore, it might be expected that its draughtsmen have reached a laborious compromise between the before-said law systems in a laborious way. The following questions will be addressed: does this divergence between civil- and common-law systems exist realiter and, if so, how has it been bridged in the DCFR? In order to answer these questions, rights of a party to a contract of monetary obligations have been distinguished from rights to non-monetary ones. It will turn out with respect to each of these types of obligations that the beforesaid divergence between civil- and common-law systems is not as wide as might have been expected. The remaining divergences between the law systems have been bridged by the draughtsmen of the DCFR in different ways, dependent on the type of obligation at stake. With respect to monetary obligations, they have chosen for the common-law solution, that is, damages instead of a right to specific performance. With respect to non-monetary obligations, the civil-law solution that these draughtsmen have, on the contrary, chosen for the civil-law solution as the basic rule is the right to specific performance; their task to include the rights that the European Union confers on consumers in the DCFR may account for this latter choice.
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Gunnarsson, Eyvindur G. "Default Interest Rates in International Transaction: Analyses of Private Law Application." European Review of Private Law 25, Issue 4 (September 1, 2017): 765–88. http://dx.doi.org/10.54648/erpl2017048.
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Abstract: A legal problem that regularly arises in the event of default of monetary obligations in international contracts, or contracts which contain a foreign element, is which law to apply to default interest rates. This is of significant importance as default interest rates can vary to a great extent between countries. Iceland was hit hard by the 2008 financial crisis, especially by the spill-over effects of its banking failure which, inter alia, lead to the collapse of the currency (ISK). As a result, both the failed banks as well as many debtors defaulted on their obligations. This has provided for interesting case law in Iceland. The article explores Icelandic rules on default interest on monetary claims in foreign currency. The main issue at hand whether Icelandic or foreign law is applicable. The 2001 Interest Act applies to default interest on monetary claims. The rate of the official default interest is based on the strength of the relevant currency. In states where the currency is strong the default interest is usually lower than in states that have a weaker currency. Accordingly, if a foreign currency monetary claim accrues default interest under Icelandic law, the creditors’ return can be much higher or lower than under the law of the state of the currency of payment, depending on the strength of that currency. It is, therefore, pivotal to determine which law is applicable to the contract. In the absence of express choice of law, the rules of Icelandic private international law decide what is the prevailing law of the contract. The relevant law is the 2000 Act on the Choice of Law in Contracts which materially corresponds to the 1980 Rome Convention on the law applicable to contractual obligations. The Supreme Court of Iceland has held that the prevailing law of the contract is also the applicable law of the default interest on a foreign currency monetary claim. This is also the prevailing view of courts in most of foreign jurisdictions. Article 78 of the United Nations Convention on Contracts for the International Sale of Goods (CISG) only states that if a party fails to pay the price or any other sum that is in arrears, the other party is entitled to interest on it. However, it is silent on the interest rate. On the other hand, the UNIDROIT Principles of International Commercial Contracts, 7.4.9(2), the Principles of European Contract Law, PECL 9:508(1), the Draft Common Frame of Reference, DCFR III. – 3:708, as well as the Common European Sales Law (CESL) address the problem with an explicit rule that states that the interest shall be the average bank short-term lending rate to prime borrowers prevailing for the currency of payment at the place for payment. Résumé: Un problème juridique qui se pose régulièrement dans le cas de manquement aux obligations monétaires dans les contrats internationaux, ou dans les contrats contenant un élément étranger, est de savoir quelle loi appliquer aux taux d’intérêts de retard. Ceci est d’une importance majeure dans la mesure où les taux d’intérêts de retard peuvent varier énormément selon les pays. L’Islande a été durement touchée par la crise financière de 2008, spécialement par les répercussions des faillites de ses banques qui ont notamment conduit à l’effondrement de la devise (ISK). Par voie de conséquence, les banques en faillite, ainsi que de nombreux débiteurs, n’ont pas respecté leurs obligations. Cette situation a fourni une intéressante jurisprudence en Islande. Le présent article étudie les réglementations islandaises concernant les interest de retard sur des créances pécuniaires en monnaie étrangère. La question essentielle est de savoir si c’est la loi islandaise ou la loi étrangère qui s’applique. La ‘Loi sur
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Shabalin, Andrii. "Judicial procedural issues of choosing an effective method of legal protection in civil cases." Theory and Practice of Intellectual Property, no. 3 (September 7, 2021): 67–75. http://dx.doi.org/10.33731/32021.239585.
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Keywords: civil procedural protection, court effective way of protection, civilprocess
The article is devoted to the study of Civil Procedureaspects of the court's application of a proper and effective method of protecting aviolated right within the frame of its own judicial discretion. Attention is paid to thestudy of the legal nature of civil protection, existing doctrinal positions, as well as thelegal and regulatory environment. The features of the exercise of discretionary powersby the court regarding the use of an effective method of protecting violated privatelaw have been established. It is indicated that the court is empowered to choose an effectivemethod of legal protection exclusively within the limits of the statement ofclaim — claims are detailed. It is emphasized that when choosing an effective methodof protection, the principle of the rule of law must be observed, in accordance with theprovisions of Article 10 of the Civil Procedural Code of Ukraine (“CPCU”). This meansthat an effective method of legal protection must be correlated with the provisions ofthe Convention for the protection of human rights and fundamental freedoms and thecase law of the European Court of Human Rights. This universal provision applies toall cases of claim proceedings, namely the claim, which are decided by the rules ofcivil procedure. The peculiarity of the court's use of an effective method of protectionin civil cases is that it can choose an effective method of legal protection only in courtcases in which the claim is considered, as well as when the law or agreements do notdetermine the effective method of legal protection. On the basis of the conducted scientificresearch, the author has developed own gradation of legal criteria of choice bycourt of an effective way of legal protection at consideration of civil cases. Such a gradationis universal for all cases considered by the court under the rules of civil procedure.Exceptions to the above regarding the application of a specific method of protectionare cases related to compensation for damage caused to an individual as a resultof withdrawal of an insolvent bank from the market or liquidation of the bank.
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Miklossy, K. "RESILIENCE AND POLITICAL DEVELOPMENT OF EUROPE DURING THE CRISIS: EVIDENCE FROM HUNGARY." Political Science (RU), no. 2 (2021): 53–73. http://dx.doi.org/10.31249/poln/2022.02.03.
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The article reveals the strategies of the political elites in a number of East European countries, which allowed them during the pandemic crisis not only to maintain stability, but also to expand the use of authoritarian practices by easing foreign policy pressure from Brussels. Using the case of Hungary as a basis for empirical analysis, I show how the crisis has increased the opportunity for power elites to consolidate their dominance. The restrictive measures imposed by Western countries were used by the Hungarian authorities as an excuse to carry out another attack against political competition and civil liberties. However, the main outcome of the political development during the pandemic crisis in Hungary was not so much a clearly observed undermining of democracy and the rule of law, as another round of nationalization of a number of economic enterprises that fell under the control of the ruling elites. This strengthened the economic foundation of autocracy in contemporary Hungary, making the regime more autonomous from EU pressure. I argue that the autocratization of Hungary in the context of the pandemic is based on the successful application of the maneuvering strategy by the elites. Their choice, in turn, is shaped by the historical legacy of Hungary, which pioneered this strategy to resist Moscow's pressure during the Communist rule. I show that the two most important factors - temporality and spatiality -are key to the effectiveness of the political survival of the current political regime in Hungary. The first of them provided an arsenal of strategies that were effectively used in the Soviet period and reapplied by the Hungarian elite nowadays. The second factor ensures the exchange of ideas between the leaders of the East European countries - EU member states. Thus, the “learning” and successful application of strategies that reinforce authoritarian tendencies in contemporary Hungary has both historical (temporal) and spatial dimensions.
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Pazdan, Maksymilian. "Sprawy spadkowe w umowie polsko-ukraińskiej z 1993 r." Problemy Prawa Prywatnego Międzynarodowego 31 (December 14, 2022): 133–61. http://dx.doi.org/10.31261/pppm.2022.31.05.
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The article is dedicated to the matters of succession in the Agreement of 1993 on Legal Aid concluded between Poland and Ukraine. The author touches upon a number of issues. First, he discusses the role of the “general compatibility clause” provided for in Article 97 of the 1993 Agreement. He concludes that the clause does not produce effects with regard to the Regulation (EU) No 650/2012. Under the “general compatibility clause”, in all situations where the 1993 Agreement does not provide for a rule being the equivalent of the rules laid down in the Hague Convention of 1961 determining the law applicable to the form of a testamentary disposition, in Poland, in relations between Poland and Ukraine, the law applicable to the form of a testament is to be determined pursuant to the provisions of the Hague Convention of 1961.Second, the author discusses the conflict-of-laws rules set out in the Agreement which designate, as the applicable law, either Polish or Ukrainian law. He contends that where the deceased is a Polish and Ukrainian national, in order to determine which of those nationalities have to be taken into account for the purposes of Article 37 (1) of the 1993 Agreement, the criterion of the most effective (more closely connected) nationality should be relied on. However, the situations that involve a deceased of Polish or Ukrainian nationality, who is also a third-State national, do not fall within the scope of the 1993 Agreement. The application of the 1993 Agreement is, on the other hand, not barred by the fact that an immovable property in a third State forms part of the estate. Jurisdiction and the law applicable to the succession of such immovable property must be determined, both in Poland and in Ukraine, pursuant to their general conflict-of-laws regulations on matters of succession. The author explains also that the drafters of the 1993 Agreement (in Articles 37 (1) and (2)) ruled out the principle of unity of succession in favour of the principle of scission, employing the connecting factors of nationality and of location of the immovable property. This results in numerous complications in the determination of the applicable law and in its application. However, the law applicable to succession determined on the basis of Article 37 (1) and (2) of the 1993 Agreement of 1993 governs the succession as a whole, with the exception of issues covered by other rules provided for in that agreement (for example, Article 39) and of the issues that do not fall within its scope of the 1993 Agreement. Although Article 39 (1) of the 1993 Agreement expressly mentions only consequences of defective consent, there is no doubt that the said rule also covers the legal requirements for effective declaration of consent.Third, the author addresses the function of Article 38 of the 1993 Agreement, which is a substantive law provision on the estate without a claimant. This provision enjoys priority over Article 33 of the Regulation No 650/2012. Article 38 solely determines the State (Poland or Ukraine) acquiring the estate without a claimant. The concerned State enjoys the competence to designate the entity that will become the subject of rights and obligations forming part of the estate without a claimant.Finally, the author comments on the pending case resulting from the preliminary question posed by the Opole District Court (Sąd Okręgowy, case no II Czz. 438/21). The Opole Court requested from the European Court a ruling on whether a Ukrainian national residing in Poland may, under Article 22 of the Regulation No 650/2012, choose Ukrainian law. The author suggests, that — although not without a doubt — it is tempting to answer this question in the affirmative. The argument here is that the freedom to choose the applicable law in matters of succession falls entirely outside the ambit of the 1993 Agreement and so the Agreement does not preclude the choice.
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Gorbalinsky, V. V. "The concept of the proper method of protection when challenging the decisions of subjects of authority in administrative proceedings." Uzhhorod National University Herald. Series: Law 1, no. 80 (January 22, 2024): 446–49. http://dx.doi.org/10.24144/2307-3322.2023.80.1.67.
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The article reveals the meaning of the concept of the proper method of protection when challenging the decisions of the subjects of authority in administrative proceedings. The article examines judicial practice regarding the selection and application of the proper method of legal protection, highlights the relationship between such categories as the proper method of legal protection and the effective method of legal protection. It is concluded that, when appealing against the decisions of the subjects of authority, the appropriate method of defense is one that does not contradict the law, corresponds to the circumstances of the case and the purpose of judicial protection, and is also effective in disputed legal relations and will lead to effective protection of the violated right, freedom or interest . It is substantiated that the proper method of protection must meet the following criteria: sufficiency, enforceability, not to violate the rights or interests of other persons, not to contradict the law. Attention is drawn to the fact that the provisions of the Constitution of Ukraine, the European Convention on Human Rights and the practice of the European Court of Human Rights are the basis for determining the appropriateness of the chosen method of protection in the aspect that it does not contradict the law and ensures effective protection of the rights, freedoms and interests of the person in the event of an appeal decisions of subjects of power. The article reveals that the courts, when assessing the appropriateness of the chosen method of protection when challenging the decisions of the subjects of power, must also determine its effectiveness at the same time. It is proved that the courts, evaluating the appropriateness of the method chosen by the plaintiff to protect the violated rights, freedoms and interests when appealing the decisions of the subjects of authority, must also determine whether this method is effective, choosing the appropriate and effective method of protection, the court must be guided by the rule of law and the principle proportionality, which means that the choice and application of the method of protection of rights, freedoms and interests when challenging the decisions of subjects of power must be justified, justified and proportionate to the offense. It is concluded that the court should not reject the claim only because the method of defense chosen by the plaintiff is not provided for by law. In such cases, the courts should proceed from the general principles of protection of rights, freedoms and interests set forth in the Constitution of Ukraine and the Convention on the Protection of Human Rights and Fundamental Freedoms, the practice of the European Court of Human Rights.
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Shveda, B. V. "Judicial discretion in the administrative process." Analytical and Comparative Jurisprudence, no. 6 (December 27, 2023): 528–32. http://dx.doi.org/10.24144/2788-6018.2023.06.92.
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In the article, based on a systematic analysis of the current national legislation and the provisions of the European Court of Human Rights, judicial discretion in the administrative process is considered. The topicality of the topic is determined by the fact that the study of the nature of law enforcement will allow us to determine the role of discretion in legal activity, mark its place in the arsenal of legal regulation tools, and create conditions for increasing the social significance of law. The methodological basis is a collection of general scientific research methods, such as analysis and synthesis of the obtained results. Special and private scientific methods were also used: logical, systematic, comparative legal, functional, sociological, axiological. The subject is theoretical conceptual developments regarding judicial discretion and its limits. Judicial discretion in the Romano-Germanic legal family under the rule of the doctrine of legal positivism, which is complemented by the natural-law direction, in the operational aspect represents a choice made within the limits of the legal norm. It is noted that lawenforcement discretion is an activity of authorized legal subjects carried out taking into account and within the limits of the law, which provides for the possibility of choosing the optimal decision in a legal case. Limits of discretion are legal frameworks established by legal means that limit the scope of application of law. Based on the legal nature of lawenforcement relations, which have a dual structure, which includes the material-legal content and the procedural-procedural form of the exercise of the judicial discretion when considering a specific case, they are determined by material-legal means, which consist of: orders of the material norm of the law; circumstances of the case; provisions of court practice; principles of law. As for the procedural aspect, the limits of judicial discretion are defined by means of the powers of the court; the content of the demands; procedural terms; subject boundaries. Further research involves determining the impact of information technology on judicial discretion.
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Lv, Ping, and Francesca Spigarelli. "The determinants of location choice." International Journal of Emerging Markets 11, no. 3 (July 18, 2016): 333–56. http://dx.doi.org/10.1108/ijoem-09-2014-0137.
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Purpose – The purpose of this paper is to analyze the role of institutional distance and host country attractiveness in location determinants of Chinese Foreign investments in EU in the renewable energy sector, taking into account bilateral political and economic relations. Design/methodology/approach – A firm-level Ministry of Commerce (MofCom) database of greenfield and non-greenfield Chinese investments abroad is used. A six fixed-effects logit analysis is performed. Findings – Chinese firms tend to invest in EU countries with reduced rule of law; market affluence is an attraction factor for them, but they do not seem to be human capital asset-seekers. Countries with politically stable environment are most attractive to sales/services subsidiaries; while countries with good control of corruption, low trade barriers and encouraging foreign ownership are most attractive to manufacturing subsidiaries. A large market is the most attractive factor for R & D subsidiaries, and a rich market is the most attractive factor for manufacturing subsidiaries. Manufacturing subsidiaries are more technological asset-seekers. R & D subsidiaries are the most non-human capital asset-seekers. Research limitations/implications – The study extends the state of the art of the literature by developing a theoretical framework, grounded on the influence of host country institutional factors and on endowment of resources on the location choice of Chinese investors. Further variables should be included in the future (industrial specialization of host country, cultural distance, bilateral ties). Practical implications – Policy implications are relevant. They are related both to outward foreign direct investment attraction policies and to Europe-China cooperation dialogue. With reference to attraction policies, as Chinese green firms are technological asset-seekers, more than human capital asset-seekers, EU countries interested in partnering with Chinese investors should develop specific measures targeting encouraging technology spillover. Even R & D subsidiaries should be tempted with technology-oriented measures. With reference to Europe-China cooperation, the paper findings support suggestions for a more active European position on foreign investments in key European energy sectors. Originality/value – The paper is grounded on an improved theoretical model, tested through a unique Mofcom firm-level database. Originality lies in the fact that the authors provide a sectoral insight. The need for sectoral analysis is fundamental as Chinese industrial development and internationalization path vary extensively across industry, due to policy interventions, supportive measures and prioritized initiatives. Zhang et al. (2011, p. 229) found that – specifically – the energy sector is highly sensitive to host country institutional context, therefore Chinese foreign direct investment are more likely to be exposed to regulatory and competitive pressure compared to other industries.
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Tamburelli, Gianfranco. "NOTES ON THE RELATIONS BETWEEN THE EU AND UKRAINE AND THE PROGRESS IN THE IMPLEMENTATION OF THE ASSOCIATION AGREEMENT." Administrative law and process, no. 2(25) (2019): 148–65. http://dx.doi.org/10.17721/2227-796x.2019.2.10.
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The 2014 Association Agreement between the EU and Ukraine, which replaces the 1994 Partnership and Cooperation Agreement, may be considered the most important result of a cooperation developed since the beginning of 90’s, first in the framework of the European Neighbourhood Policy, then of the Eastern Partnership. This paper analyses in an essential way the evolving relations between the EU and Ukraine, and the progress made by Ukraine in pursuing the objectives set forth in the Association Agreement. The Author considers the main features of the Agreement, and identifies and assesses the principal legal issues arising from its implementation. The Agreement is aimed at deepening political and economic relations between the EU and Ukraine, and to gradually integrate Ukraine into the EU internal market. It is the first of a new generation of EU agreements characterized by comprehensiveness, and democratic conditionality. It requires a broad and detailed work of approximation of the Ukrainian laws to the EU regulations. Reforms are foreseen in a number of key areas. Ukraine has been developing a complex strategy to reorient its legal system towards the EU. According to the 2018 Report on Implementation of the Association Agreement – prepared by the Government Office for Coordination of European and Euro-Atlantic Integration, and the Vice Prime Minister’s Office for European and Euro-Atlantic Integration, based on the outcome of performance of the objectives scheduled for 2018, the Agreement was implemented by 52%. According to the Author, in evaluating the “results achieved” by Ukraine in the approximation of the national legislation to the EU legislation, it must be taken into account the challenging situation of the country. The Government and the Verkhovna Rada have been acting with the aim to pursue the overall objectives of the Association Agreement notwithstanding the difficult political and administrative situation following the events in Crimea, the Donbass conflict, the worsening of the relations with Russia until the termination of the Treaty of Friendship and the temporary adoption of the Martial Law. He highlights the efforts of the EU in financially supporting the process of reform in Ukraine, and of Ukraine towards constitutional and legislative reforms reinforcing the European choice. Ukraine has finally developed an ad hoc institutional framework, and new legislation, including amendments to the Constitution, for the implementation of the Association Agreement. Relevant progress has been made in various sectors of the cooperation, while in various others the actions taken are not yet effective. For example, in the sector of the rule of law, various actions were taken, but modest results were achieved in the fight against corruption; while in the environment sector, which is not considered among the priorities, the Law on EIA might be considered an important achievement. In the whole, the implementation of the Association Agreement was evaluated positively at the highest level of political dialogue, by the 20th EU-Ukraine Summit (9 July 2018), and the 5th EU-Ukraine Association Council (Brussels, 17 December 2018). In the Аuthor’s opinion, notwithstanding various critical points, the numerous constitutional and legislative acts, the regulations and the plans adopted in the period 2014–2018, represent important steps of a broad process of change. He underlines the importance to proceed focusing not just on the formal harmonization of the Ukrainian legal system to the EU law, but on the effectiveness and efficacy of the new rules, and their real implications on the social, economic, political and cultural heritage and life of people.
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Kosytsia, O., and V. Volik. "JUDICIAL INTEGRITY AS A CRITERION FOR EVALUATION THE WORK OF COURTS IN UKRAINE." Vìsnik Marìupolʹsʹkogo deržavnogo unìversitetu. Serìâ: Pravo 13, no. 25 (2023): 94–100. http://dx.doi.org/10.34079/2226-3047-2023-13-25-94-100.
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The article analyzes the practice of European judicial systems regarding the application of such a criterion as integrity to a judge. The author also analyzes the theoretical achievements of scholars regarding the content of such moral and ethical categories which have entered the legal circulation and the national legal field as good faith and integrity. The choice and relevance of the topic is due to the criticism and unsatisfactory state of affairs in the context of numerous reforms in the field of justice in our country and the ambitious goals of achieving the European legal and judicial culture. The author establishes that a condition for judicial independence and administration of justice in compliance with the rule of law is the integrity of a judge. At the same time, it is determined that integrity is a legally established criterion for the qualification assessment of a judge by the High Qualification Commission of Judges of Ukraine with a view to determining the ability of a judge (candidate for the position of a judge) to administer justice in a relevant court. The article analyzes the Recommendation of the European Network of Councils for the Judiciary workshop on the evaluation of judges and provides the main provisions relating to judicial evaluation systems and, accordingly, courts in European judicial systems. In the course of the study of comparative analysis of the selection, evaluation and promotion of judges: current criteria and methodology used in the EU and beyond, the author establishes that integrity competence (ability to resist undue influence, adherence to professional ethics, etc.) is a typical criterion enshrined in the legislation of foreign countries. It is found that in countries that have recently undergone or are undergoing judicial reform, there is a tendency to establish very high and very detailed requirements (criteria) for the selection, evaluation and promotion of judges, but less attention is paid to the methodology for verifying these requirements, which prompts future research to focus on specific methodologies and tools that allow us to understand how decisions are made on whether a person meets these requirements, such as integrity. Based on the analysis of scientific approaches to the use of such moral and ethical categories as good faith and integrity in law, the author concludes that they fully reflect the tasks of the court in the administration of justice and are both a separate requirement (competence) and a guide for a judge in the performance of his or her duties. Key words: court independence, court performance evaluation, evaluation criteria, justice system reform, integrity, good faith.
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Arifkhodzhaieva, Tetiana, and Iryna Ponomarenko. "ECONOMIC POLICY OF THE STATE IN CONDITIONS OF INFORMATIZATION OF HEALTH CARE IN UKRAINE AS AN INTEGRAL PART OF THE SOCIAL SPHERE." Baltic Journal of Economic Studies 7, no. 5 (December 27, 2021): 228–34. http://dx.doi.org/10.30525/2256-0742/2021-7-5-228-234.
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The purpose of the article is to analyze domestic and international legal norms on the protection of medical information in order to improve the system of national legislation in the field of health care. The methodological basis of this study is a system of methods, the set of which is determined by the purpose and features of the study: dialectical, systemic, system-structural, analytical-synthetic, comparative-legal methods of analysis of domestic and international legal regulation of economic policy of the state in the conditions of informatization of health care of Ukraine. It argues that Ukraine, seeking to integrate into the European space and building its own strategy of economic development, must be clearly aware of both its capabilities and external factors of influence. The choice of possible alternatives is too complex a task, but the leading idea of socio-economic policy should remain the desire to ensure sustainable economic development of the country. In particular, the following is analyzed: recent international and domestic normative acts regulating state economic policy activities in the field of health care informatization in Ukraine: in particular, General Data Protection Regulation of the European Union (GDPR), CMS Interoperability and Patient Access Final Rule, ONC's Cure Act Final Rule, Order of functioning of the electronic health care system of Ukraine; materials of judicial practice, including materials of cases of the European Court of Human Rights, the results of sociological research. A comparative analysis of the GDPR and the Health Insurance Portability and Accountability Act (HIPAA) was conducted. The main problematic issues of state economic policy in the context of health informatization in Ukraine are highlighted. Compared to previous regulations governing medical data, the GDPR pays much more attention to the implementation of new requirements that have arisen due to the growing digitalization of healthcare, and therefore may contribute to strengthening their protection. Results. It is theoretically substantiated that quality medical reform is possible only with the introduction of modern methods of informatization and, consequently, information protection. As the analysis has shown, currently in Ukraine the legal system providing information protection in the medical sphere needs immediate improvement. This requires: systematizing and codifying national legislation in accordance with European legal norms and international law; developing a comprehensive legislative act, which would regulate the collection, protection and transition of medical information at the legislative level, following the example of GDPR (for structuring the medical information system, ensuring mandatory certification for information protection, development of cryptography/encryption technologies, delimitation of rights of access to information for medical workers, ensuring access to information with mandatory use of electronic signature, medical workers need to take short courses and register with information security specialists (defined access rights and the ability to change the level of access, provide input for identification and authentication), correcting data and entering new information is carried out with a confirmation of electronic signature, develop an algorithm for transferring information between medical institutions).
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Pudovochkin, Yu E., and M. M. Babayev. "Contradictions of judicial criminal policy." Law Enforcement Review 6, no. 1 (March 24, 2022): 174–90. http://dx.doi.org/10.52468/2542-1514.2022.6(1).174-190.
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The subject of the study is the criminal policy in the context of contradictions in the functioning of the courts.The purpose of the study is to investigate, which contradictions of criminal policy are generated by a multi-level system of courts, and which mechanisms for overcoming them in order to optimize criminal policy could be found out.The methodology. In modern conditions of diversification of methodological approaches to organizing and conducting political-legal research, it is important not to discard, but to rethink and rediscover the epistemological possibilities of the methods of classical science, especially the method of dialectical analysis.The main results and scope of the study. The use of the category "dialectical contradiction" for the purpose of studying the problems of the functioning of the courts in terms of the interpretation and application of criminal law provisions opens up new possibilities in the study of criminal and judicial policy, as well as determining the prospects for its development. In the study, the law enforcement contradictions of criminal policy refer to the relations between courts of various types and levels that develop in the course of their functioning and reflect the opposite approaches of law enforcement bodies to the interpretation and application of criminal legislation. Considering the level and type of legal proceedings, these contradictions can be summarized in the following groups: (a) between national and international courts; (b) between superior courts of the national legal system; (c) between the courts of various instances of the system of courts of general jurisdiction.The contradictions between national and international courts, emerging in the field of protection of human rights and freedoms, are an objective source of development of judicial practice and policy. The resolution of these contradictions is based on the consensus of various courts and compromise. If the position of the European Court of Human Rights does not contradict the provisions of the Constitution of the Russian Federation, the state adjusts its legal practice in the direction set by the authoritative international instance by means of: (a) direct application of national legislation with due regard for the ECHR’s legal positions; (b) the application of national legislation in its constitutional interpretation by the Constitutional Court of the Russian Federation, which does not differ from the decisions and positions of the ECHR; (c) amending national legal acts in pursuance of ECHR judgments. In exceptional cases, when the position of the European Court touches upon issues of the country's constitutional identity, the contradiction between the international and national legal order is resolved by the Constitutional Court of the Russian Federation on the basis of the priority of constitutional norms.At the level of the superior national courts the contradictions are represented by the differing positions of the Constitutional Court of the Russian Federation and the Supreme Court of the Russian Federation on the assessment and interpretation of criminal law provisions. Such contradictions can be thought of as latent until they are not revealed in constitutional proceedings. The identification and resolution of these contradictions is the most important direction of legal policy in the country; it reflects the consistent solution of the aim of constitutionalization of the criminal law.At the level of the system of courts of general jurisdiction, the concept of "contradiction" can only be applied to those differing approaches of the courts to solving criminal cases that do not go beyond the rule of law. Contradictions arise only when, having correctly established the factual circumstances of the case, the courts disagree in the choice of the legal provision to be applied, although any such choice can be explained and motivated. These contradictions may or may not be related to the quality of criminal legislation. Therefore, the mechanism for their resolution includes not only law revision. It is important to use the capabilities of the judicial system itself to develop a consensual understanding of the textual content of the criminal law and the rules for its application.Conclusions. Overcoming the contradictions of the judicial criminal policy is possible only in the process of communication and dialogue between the courts of different levels on the basis of differentiation of jurisdiction, respect for authority and independence.
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Fedorova, Alla, and Olha Holovashchenko. "Challenges as a Driving Force for the Modernization of Social Statehood in Europe." Problems of legality, no. 161 (June 30, 2023): 230–52. http://dx.doi.org/10.21564/2414-990x.161.281091.
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One of the most significant social achievements of the twentieth century was the development and implementation of the welfare state concept within the framework of the theory of a democratic, rule-of-law state which ensures the best option for social and economic development, as well as political stability in society. It is proved that although, since the 1970s, some economists, political scientists and lawyers have periodically sharply criticized the concept of the welfare State, predicting its decline, the positive results of its transformation in European countries, as well as the development of the European Social Community within the European Union, show that the welfare State has a chance not only to survive, but also to remain one of the fundamental principles of statehood in democratic countries, and an element of the supranational organization of power embodied in the European Union.The purpose of the article is to analyze the traditional and new challenges to the welfare state which determine the change of approaches to its functioning and priorities at the current stage of development of state-legal and interstate (integration) relations.The key idea that structures the study is the thesis that European states that form a united Europe or aspire to join it, such as Ukraine, despite belonging to the same civilizational community, retain the right to choose how to respond to the economic, social, demographic, migration, environmental and climate challenges of our time. This choice determines the future of national welfare state models. In accordance with the stated goal, the article identifies two groups of major challenges: established (demographic changes, in particular, population aging; changes in the position of women in society and in the labor market; changes in the labor market; poverty and social exclusion) and new (rapid growth of emigration of Ukrainian doctors and nurses; introduction of artificial intelligence technologies; uncontrolled mass immigration; rapid growth of disability in society) faced by the welfare state and, mainly, the social security system, which is its foundation. While the established challenges require adjustments to the priorities and tasks of the welfare state, the newest ones require a significant modernization of the welfare state, adapting it to the new political, economic and social conditions of society.Further research on the selected issues should be conducted taking into account the existence of certain models of the welfare state that unite European states either by geographical (Scandinavian, continental, Anglo-Saxon, Southern European) or ideological (liberal, conservative, social democratic, corporate, solidarity) criteria.The problem of the welfare state's response to the challenges of environmental and climate crises deserves separate development, and in the context of this consideration, the correlation between the social and environmental (“green”) state.
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Rechytskyi, Vsevolod. "Max Weber’s Paradox of Consequences in the Context of Ukrainian Constitutionalism." Philosophy of law and general theory of law, no. 2 (January 25, 2023): 54–77. http://dx.doi.org/10.21564/2707-7039.2.269181.
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The article considers the phenomenon of Max Weber’s “paradox of consequences” in the context of the issue of Ukrainian constitutionalism. According to the author, Ukraine has only recently begun the process of mental liberation from totalitarianism, which significantly influenced the design of the 1996 Constitution of Ukraine. The main shortcomings of Ukrainian constitutionalism, the author considers its non-market, post-socialist nature. This affects boththe form and the in-depth content of a number of key constitutional norms.
The author shows that modern Ukrainian constitutionalism continues to be a distant successor to the utopian socialist project, which has a negative impact on the economy, politics and culture of modern Ukraine, the vector of its progress. The article contains arguments in favor of a broad constitutional renewal of Ukraine, up to the development of a new Basic Law.The author’s argument is based on a wide range of illustrative material. The author turns to sources of historical, political and aesthetic nature, which allows him to reveal the topic in a non-standard, original style. Despite the appeal to scientific arguments, the author of the article also appeals to themoral and aesthetic feelings of his audience. He argues that organic constitutionalism is associated not only with rational, but also irrational, sensual beginnings. In his view, the content of modern constitutionalism is freedom of choice and private property in their very broad sense. He insists that the stars of modern business and trade must have a separate political representation in Ukraine.The Senate as the upper house of the renewed parliament of Ukraine can become such a representation. The article is part of a number of the author’s publications on informal constitutionalism. It reflects only one aspect of his views on European and American constitutionalism. In general, the article embodies a strongly critical view of the rule of law in Ukraine. On the other hand, it demonstrates the author’s desire to honestly understand ata professional level the shortcomings and achievements of modern legal policy of Ukraine.Stylistically, the article promises to be interesting not only for lawyers. It may be of equal interest to specialists in political science, philosophy and theory of law.
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Rybakova, Tetiana. "The current state of investment and financial cooperation between Ukraine and the European Union." University Economic Bulletin, no. 46 (September 1, 2020): 183–91. http://dx.doi.org/10.31470/2306-546x-2020-46-183-191.
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Relevance of research topic. Nowadays the Ukraine's relations with the European Union are extremely important. European integration for Ukraine is a strategic choice for the future, and it makes a great influence on the place and role of the state in the new system of international relations, including economic, monetary and financial ones. Formulation of the problem. Ukraine's reform agenda is comprehensive and requires significant financial resources that cannot be raised solely from domestic sources. This determines the importance of attracting foreign funds, including those from the EU as a strategic partner of Ukraine, as well as the creation of a favourable investment climate and therefore the intensification of foreign investment. Analysis of recent research and publications. In the background of Ukraine's European integration intentions, a significant number of scientists study the problems and prospects of investment and financial cooperation between Ukraine and the EU. This cooperation is the subject of constant monitoring by European government agencies and central executive bodies of Ukraine as well. Selection of unexplored parts of the general problem. In the conditions of unstable global political and economic environment, new challenges in the region and the extreme dynamism of investment and financial processes, it is necessary to conduct the research reflecting the current state of investment and financial cooperation between Ukraine and the EU. Setting the task, the purpose of the study. Highlighting the state of investment and financial cooperation between Ukraine and the EU at the current stage of Ukraine's European integration. Method or methodology for conducting research. System and structural approach, method of logical analysis, statistical method, method of graphic analysis, method of comparison, method of structuring. Presentation of the main material (results of work). The paper describes the political background for investment and financial cooperation between Ukraine and the EU. The analysis of foreign direct investments in Ukraine by countries of origin and by areas of attraction is carried out; the dynamics of direct investments from EU countries in Ukraine's economy for 2010-2019 is described. The current state of application of the valid instruments of investment and financial support given to Ukraine by the EU is analyzed. The areas of priority attention in the process of implementing reforms in terms of attracting the investment from the EU are identified. The field of application of results. Research of Ukraine’s European integration problems, educational process (in the preparation of the relevant sections of textbooks and tutorials for courses “International Economics”, “Global Economics”, “Finance”). Conclusions according to the article. The EU sustainable financial support covers many sectors of the economy and public life in Ukraine, including agriculture, infrastructure, transport and energy, small and medium-sized enterprises, as well as democratic reforms, overcoming the effects of the COVID-19 pandemic, research and innovation, the environment, support for military conflict victims, etc. The EU supports Ukraine through various instruments, including macro-financial assistance, the European Financial Institutions (EBRD and the EIB), bilateral support from EU member states, the EU External Investment Plan, the European Neighbourhood Instrument, and the Instrument contributing to Stability and Peace. The volumes of EU foreign direct investment in Ukraine still remain low, and their structure by country of origin is not optimal. It is important for Ukraine to attract investments from the most developed EU countries, which is possible only if an attractive investment climate is formed, and the rule of law and the fight against the corruption are ensured.
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Nielsen, Peter Arnt. "Ole Lando and Choice of Law for Contracts." European Review of Private Law 28, Issue 3 (September 1, 2020): 523–27. http://dx.doi.org/10.54648/erpl2020029.
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The author represents the content of Ole Lando’s doctoral dissertation from 1961 on the choice of law for contracts. The dissertation examined the evolution of the choice of law rules for contracts in France, Germany, England, the US and the Scandinavian countries. It is concluded that Ole Lando in his dissertation proposed choice of law rules for contracts that in general were adopted two decades after his dissertation in the Rome Convention on Choice of Law for Contractual Obligations. Harmonization, contract law, European private law, restatements
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Czigler, Tamás. "Choice-of-law in the internet age-US and European rules." Acta Juridica Hungarica 53, no. 3 (September 2012): 193–203. http://dx.doi.org/10.1556/ajur.53.2012.3.2.
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ALEKSEYENKO, Lyudmyla, Oksana TULAI, and Stepan BABII. "RECOVERY OF THE ECONOMY: FINANCING AND COMPLIANCE WITH THE PRINCIPLES OF TRANSPARENCY IN THE CONDITIONS OF GEOPOLITICAL OPPOSITION." WORLD OF FINANCE, no. 2(75) (2023): 106–24. http://dx.doi.org/10.35774/sf2023.02.106.
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Introduction. The war became part of the existence of modern Ukraine and caused radical changes in society, reformatting of economic processes both on a national and global scale. This updated the scientific discourse on the achievement of political, social and economic stability in the post-war period and the vectors of economic recovery, taking into account various scenarios of guaranteeing the country's security. Social solidarity and self-awareness of democratic countries enable Ukraine, as a candidate country for joining the European Union, not only to conduct military operations, but also to develop sectoral development strategies. Since there is no other model of economic recovery and development for the Ukrainian state, except for the implementation of EU rules (requirements) and 19 structural beacons within the framework of the cooperation program with the IMF, therefore the choice of financing options for economic recovery must comply with the principles of recovery, in particular transparency, accountability and the rule of law, which will contribute to expanding the circle of potential investors and improving the investment climate in conditions of geopolitical confrontation. The purpose of the article is to deepen the theoretical and applied foundations of the recovery of economies after wars and military conflicts, as well as to substantiate the expediency of applying the principles of transparency to achieve coordinated actions of participants in the recovery of the Ukrainian economy, taking into account the effects of geopolitical confrontation. Results. The need to restore the industrial infrastructure to stimulate not only domestic economic and business activity, but also the introduction of a greater number of industrial products to the market of the European Union is substantiated. The priority of the development of economic recovery projects, which should become important structural elements in the formation of the project market, is analyzed. In order to adequately assess the attractiveness and compliance of projects with the interests of the economy and business, a model for evaluating financing objects is proposed. Prospects for the purchase of affordable housing by citizens, taking into account the financial situation of citizens, assessment of the cost of housing and its availability on the residential real estate market, determination of basic trends of individual characteristics of state programs and approaches to their adaptation for temporarily displaced persons are considered. Conclusions. Ukraine, as a candidate country for joining the European Union, is guided in its development by the principles and norms of the EU, which are developed for developed economies. We have determined the vectors of economic recovery, which are based on four approaches: compliance with the principles of economic recovery; development of the economic complex for the medium and long-term period with balancing of inter-branch connections and resources; expansion of the list of financial instruments to stimulate the attraction of international donors, foreign and private investments; establishment of a list of main criteria for project selection. New historical realities for the future growth of the national economy require further scientific research on access to financing with a competitive cost of capital, the preparation of projects for the infrastructure and production components of recovery and reconstruction programs, the development of scientific methods of the algorithm for the distribution of general funding between sectors and strategic programs with the provision of priorities for transformation and modernization defense industry.
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Popovich, O. "Object of a terrorist act: the generic object of the crime." Analytical and Comparative Jurisprudence, no. 4 (April 28, 2022): 308–12. http://dx.doi.org/10.24144/2788-6018.2021.04.53.
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The article is devoted to the problematic issues of establishing the generic object of a terrorist act. The object of a terrorist act is important to establish the public danger of the act and its consequences, the recognition of the act as a crime, the qualification of this act and the prosecution. Attention is paid to different views of the nature and types of the object of the crime. The three-level classification according to the level of generalization of objects of crime "vertically" is considered - according to the level of generalization of objects of crime "vertically" (general, generic with definition if necessary within its limits and species object, ), and "horizontally" at the level of the direct object of the crime - the main direct and additional direct objects of the crime. Scholars also use the classification at the level of additional direct object of crime with the division of this object into two types - additional mandatory (required) and additional optional, and at the level of direct object of crime "horizontally". The special significance of the generic object of a criminal offense (criminal misdemeanor or crime) in the considered classification of objects "vertically" is emphasized. The generic (group) object of a criminal offense is a certain range of identical or homogeneous in its social and economic essence of social relations, which as a result are protected by a single set of interrelated criminal law. It has been proven that the controversial issue of the generic object of a terrorist act has a negative impact on judicial practice, because there is a lack of certainty that all the defining, typical features of the crime are clearly defined. As noted in legal scientific publications, the correctness of fixing the signs of the crime and the choice of their location in the relevant article of the Special Part of the Criminal Code serves as a legal basis for ensuring rights and freedoms in criminal proceedings. In addition, without an accurate description of the signs of a criminal offense in the rules establishing criminal liability for criminal (criminal illegal) acts, as well as without a full solution to other issues of criminal remedies to combat these crimes (criminal offenses) proper implementation of constitutional and international The principle of the rule of law is impossible, which is one of the key indicators of Ukraine's development as a legal and democratic state, which is on the path to European integration.
The defining characteristics of a terrorist act have been established, such as: a generally dangerous act, aimed at spreading fear and terror among the population or a particular social group, the ultimate goal of a terrorist attack, which is to unlawfully (illegally) influence other legal or natural persons. their behavior, which is desirable for the subject of the crime. The generic object of the terrorist act has been identified.
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Graziano, Thomas Kadner. "THE LAW APPLICABLE TO PRODUCT LIABILITY: THE PRESENT STATE OF THE LAW IN EUROPE AND CURRENT PROPOSALS FOR REFORM." International and Comparative Law Quarterly 54, no. 2 (April 2005): 475–88. http://dx.doi.org/10.1093/iclq/lei008.
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The choice of law-rules for contractual obligations is harmonized in the European Union and the system established by the Rome I-Convention has proved its merits.1 The choice of law rules for tortious or delictual liability, on the contrary, is still largely left to the national legislators and courts2 and they differ very much from one country to the other. Two Hague Conventions cover particular issues.3 Neither of them is in force in the UK.
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HROMOVA, Olga, Anastasiia Abdullaieva, and Anna SHEVCHUK. "CONCEPTUAL BASIS OF THE DEVELOPMENT OF ENTERPRISE’S EXPORT POTENTIAL." Herald of Khmelnytskyi National University. Economic sciences 310, no. 5(1) (September 29, 2022): 33–36. http://dx.doi.org/10.31891/2307-5740-2022-310-5(1)-5.
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The effective operation of any company in the market is necessarily related to the analysis of consumer behavior. At the time of constant transformational changes in society, unpredictable risks that arise in the country, the question of understanding the theory of consumer behavior and the possibility of influencing it with the help of available resources is relevant. The purpose of the article is to reveal the essence of the concept of consumer behavior and the main elements that influence the customer’s choice, as well as how to correct behavior and minimize losses during a crisis and martial law. The development of society inevitably affects consumers, their needs are transformed, improved, and costs to satisfy these needs increase. Therefore, consumer behavior is changing and companies need to adapt to new conditions. The process of making purchase decisions, as a rule, takes place under the influence of various factors. This makes appropriate adjustments, facilitates or hinders the adoption of balanced decisions. The main factors that influence purchase decisions. The latest challenge was the coronavirus pandemic, which also affected consumer behavior and made quite a few adjustments. Due to the threat to health and the imposed restrictions, people’s habits, the frequency and places of purchases, the structure and volumes of consumption, the needs of the population and, in general, the behavior of consumers have changed. Now, not only merchandising, but the functioning of the country’s economy in general, satisfaction of consumer needs during the war is an urgent issue. Since the market was quite complicated by the consequences of the pandemic, consumer behavior was strongly influenced by military actions. It is worth noting that even during the war, Ukrainian companies show a high level of customer service that even some European companies cannot provide. Most from the very beginning of the full-scale invasion restored customer support, and later returned, and some even introduced discount systems and personal bonus systems. Government policy was also aimed at supporting users, interest charges, fines and penalties were abolished, which enabled the population to withstand the period of economic shock. In the period of such unpredictable global changes, increased risks, consumer behavior undergoes a noticeable transformation. However, companies constantly monitor the situation and show that they are well aware of the needs of their customers and can adapt to modern trends, thereby supporting the economy of the country and their consumers.
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T. О., Chepulchenko. "The concept of human rights: doctrinal approaches." Almanac of law: The role of legal doctrine in ensuring of human rights 11, no. 11 (August 2020): 258–64. http://dx.doi.org/10.33663/2524-017x-2020-11-44.
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The article examines the modern concept of human rights as the universally accepted system of views and attitudes about the place and role of human rights in the society and the state. The list of human rights enshrined in these international instruments and the constitutions of many countries, was the result of a long historical development of samples and standards of human life and the entire community. It is emphasized that on the basis of a combination of natural and positivistic concepts of human rights and made possible the consolidation of fundamental freedoms in the constitutions of democratic States. The article focuses on the basic concepts of how to solve the problem of human rights and legal status of the individual which have developed in the history of legal theory and practice of various peoples: liberal (European) concept of human rights, collectivist, Islamic and traditionalist concept. It is emphasized that a decisive influence on the establishment of human rights made on the liberal conception of natural law doctrine, which established the priority of human rights, the new parameters of the relationship between the individual and the government. In the statement of the rights and freedoms of man played an important role in their ideological, doctrinal justification – the doctrine of natural human rights that do not depend on the discretion and arbitrariness of the government, and it is aimed at ensuring the rights defined by nature. Based on this doctrine and on the above mentioned international legal instruments, the new Constitution of Ukraine establishes a number of new rights, which were previously unknown or Constitution of the Soviet Ukraine nor the Ukrainian legislation: the right to life, right to dignity, the right to respect for private and family life, freedom of movement and free choice of residence, right to freedom of thought and speech, free expression of views and beliefs, and so on. Therefore, a new concept of the relationship between the Ukrainian state and the person with priority to the latter is brought to life, since the category of human rights operates solely in relations between man and power. Human rights are the limits of power. They define the sphere of human activity in which the power (the state) cannot interfere and the responsibilities which the state has for the human being. The article also discusses four generations of human rights, it is noted that in the XXI century. we can talk about the formation of the fourth generation of human rights, which is connected with the scientific discoveries in the field of microbiology, medicine, genetics and more. It is this generation that is at the center of intense debate precisely in terms of the naturalness of these phenomena and processes, from the standpoint of morality and worldview of a particular society, as well as based on the content of scientific doctrine. As a conclusion, the author writes that the legally enshrined legal position of a person has as its basis a liberal and natural-law concept, which stipulated as the primary principles freedom and inalienability, inalienability of human rights that belong to it from birth. Reference points are made in the relationship between the state and man - freedom, equality, the rule of law, the universality of human rights. And on these principles, principles, in addition to the actual scope of human rights and obligations, are exercised by these rights and freedoms. Keywords: constitution, concept of human rights, international legal act, human rights, natural law.
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Couwenberg, Oscar, and Grietje T. de Jong. "Redeeming Art. 13 of the European Insolvency Regulation." European Journal of Comparative Law and Governance 1, no. 1 (March 10, 2014): 58–74. http://dx.doi.org/10.1163/22134514-00101008.
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This contribution focuses on the interaction between three phenomena: corporate restructuring, choice of law, and transaction avoidance. In this context, scholars have criticised Art. 13 of the European Insolvency Regulation for providing a possibility for forum shopping. This article enables firms to declare the law of the eu Member State where the provisions on transaction avoidance allow for the most freedom to take restructuring measures applicable to contracts. Literature on company restructuring shows that a combination of restructuring measures – usually additional credit for additional conditions and/or collateral - helps companies overcome financial distress. We argue that rules on transaction avoidance should take this balance into account when voidance is demanded. Using the example of Dutch and German rules on transaction avoidance, we argue that the German rules are more accommodative than the Dutch rules. Therefore, firms may benefit using the German rules on transaction avoidance rather than the Dutch rules.
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Micheler, Eva. "Recognition Of Companies Incorporated In Other EU Member States." International and Comparative Law Quarterly 52, no. 2 (April 2003): 521–34. http://dx.doi.org/10.1093/iclq/52.2.521.
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Few decisions of the European Court of Justice have received as much attention as the 1999 judgement in Centros.1 This decision provided private international lawyers with an opportunity to examine choice of law in relation to companies against the background of European law. It also caused company lawyers to re-examine their national legislation in the light of foreign rules.
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Krans, Bart. "EU Law and National Civil Procedure Law: An Invisible Pillar." European Review of Private Law 23, Issue 4 (August 1, 2015): 567–87. http://dx.doi.org/10.54648/erpl2015038.
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Abstract: The Europeanization of national civil procedure law consists out of several pillars. The influence of the European Convention on Human Rights (ECHR) is well known. A second pillar of the European influence on civil procedure law is the growing number of European regulations concerning the crossroads of civil procedure law and private international law. This article focuses on the Europeanization of national law by a third, ‘invisible pillar’. The European influence in the ‘invisible pillar’ concerns many topics, such as ex officio application law, burden of proof, means of proof, costs, the free choice of a lawyer, the threshold amount exempt from seizure and arbitration. The first part of this invisible pillar follows from the role of national civil procedure law in enforcing EU law. The European Court leaves the procedural law to the national courts. The second area of the invisible pillar concerns procedural rules in Directives. A close look at several Directives reveals that the list of procedural topics touched upon by Directives is far from small. Directives contain procedural rules relevant for various capita of the civil procedure law of the Member States. This article seeks to shine some light on parts of this pillar by examining three topics: ex officio application, costs and the free choice of a lawyer, and legal expenses insurance. These examples serve to demonstrate that this area covers a wide variety of topics. Three problems relating to this invisible pillar will be identified: uncertainty, external differences, and internal differences.
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Anitei, Nadia-Cerasela. "REVIEW - EUROPEAN PRIVATE INTERNATIONAL LAW IN INTERNATIONAL COMMERCIAL RELATIONS." Jurnalul de Studii Juridice 16, no. 1-2 (November 23, 2021): 88–90. http://dx.doi.org/10.18662/jls/16.1-2/86.
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The reviewed book does not analyze all the provisions of European Private International Law, but only the relations between professionals in different fields and, tangentially, the relations of professionals with other categories of law subjects. This combination between aspects of international trade and the rules of European Private International Law is unique and very welcomed in the domestic legal landscape, especially since Carmen Tamara Ungureanu opts for issues that a lawyer faces daily, issues of current interest, particularly in the context of technological development and the European Union's choice and ambition to become a world leader in the digital economy.