Experientiam et Progressionem in Comparative and International Law. Contributions to the 2nd Conference on Comparative and International Law - June 24, 2022, Bucharest - International Conference
Experientiam et Progressionem in Comparative and International Law. Contributions to the 2nd Conference on Comparative and International Law - June 24, 2022, Bucharest - International Conference
Contributor(s): Banggui Jin (Editor), Cristina Elena Popa Tache (Editor)
Subject(s): Law, Constitution, Jurisprudence, International Law, EU-Legislation, Comparative Law
Published by: Societatea de Stiinte Juridice si Administrative
Keywords: comparative law; international law; public law; private law;
Summary/Abstract: This volume contains the scientific papers presented at the 2nd Conference on Comparative and International Law that was held on 24 June 2022 online on Zoom. This is an international conference. The conference is organized every year by the Society of Juridical and Administrative Sciences together with the Faculty of Law of the Bucharest University of Economic Studies. More information about the conference can be found on the official website: www.comparativelawconference.eu. The scientific studies included in this volume are grouped into three chapters: Contemporary Applicability Presentations in Comparative Law, International Law and Its Modern Regulatory Powers and Some aspects regarding criminal challenges. This volume is aimed at practitioners, researchers, students and PhD. candidates in juridical sciences, who are interested in recent developments and prospects for development in the field of comparative and international law.
- E-ISBN-13: 978-606-95351-4-1
- Page Count: 184
- Publication Year: 2022
- Language: English
Sino-European Customs Protection of Intellectual Property Rights: From Upmost Necessity to Concrete Measures
Sino-European Customs Protection of Intellectual Property Rights: From Upmost Necessity to Concrete Measures
(Sino-European Customs Protection of Intellectual Property Rights: From Upmost Necessity to Concrete Measures)
- Author(s):Rémi Fouque
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, Law and Transitional Justice, EU-Legislation, Comparative Law
- Page Range:10-26
- No. of Pages:17
- Keywords:customs; intellectual property; counterfeiting; Chinese law; European Union law;
- Summary/Abstract:This study's objectives are to enlighten the joint collaboration, legal similarities and similar goals in Sino-European customs actions while fighting counterfeiting and protecting IP rights. This article will present, in a abridged fashion, the reasons that justify the upmost necessity for both the People’s Republic of China and the European Union to carry out customs protection of IP rights, and its concrete measures taken in order to set it right. This study has been undertaken as an abridged detail of my forthcoming Ph.D thesis, which showcase the legal similarities of customs actions in fighting counterfeit goods trade, focusing on and comparing the legislations of France, the European Union and the People’s Republic of China. Even though China has been labelled as the top global source of counterfeit products, the Chinese government and customs, deeply impacted by the scourge themselves, carried on actions to fight it and prevent it by passing adequate laws: this is the demonstration of this article.
Decisions Rejecting Requests for Referral to the Court of Justice of the European Union by References for Preliminary Rulings, from the Perspective of the European Convention on Human Rights
Decisions Rejecting Requests for Referral to the Court of Justice of the European Union by References for Preliminary Rulings, from the Perspective of the European Convention on Human Rights
(Decisions Rejecting Requests for Referral to the Court of Justice of the European Union by References for Preliminary Rulings, from the Perspective of the European Convention on Human Rights)
- Author(s):Anamaria Groza
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, Human Rights and Humanitarian Law, EU-Legislation, Court case
- Page Range:27-37
- No. of Pages:11
- Keywords:references for preliminary rulings; reasoning of judgments; fair trial; CILFIT criteria; “acte clair”;
- Summary/Abstract:References for preliminary rulings, one of the most important instruments for implementing EU law, were a legal institution analyzed only from the perspective of the EU legal order. A recent ruling of the European Court of Human Rights regarding Romania has changed this traditional perspective and positioned national court decisions on the rejection of requests for references for preliminary rulings, in the context of the right to a fair trial governed by art. 6(1) of the Convention. Although the European Convention on Human Rights does not guarantee the right to have a case referred for a preliminary ruling to the CJEU, it makes it compulsory for domestic courts to give reasons for the decisions refusing to refer questions. National courts whose judgments can no longer be challenged under national law have the obligation to give reasons for their refusal in the light of the CILFIT criteria. From the perspective of the European Conven- tion on Human Rights, court decisions rejecting requests for references for preliminary rulings must be motivated in accordance with the standards of the fundamental right to a fair trial. The most striking practical effect of the ECtHR judgment discussed in this article will be the obligation to analyze concretely and to motivate the conditions for the existence of “acte clair”. The purpose of this article is to emphasize the obligation of courts to state the reasons for their decisions rejecting requests for referral to the CJEU, in the light of both EU law and the European Convention on Human Rights. The research conducted is descriptive, explanatory and comparative, in the context of relevant case law and doctrine.
The Role of Precedent in International Arbitration
The Role of Precedent in International Arbitration
(The Role of Precedent in International Arbitration)
- Author(s):Ingrid A. Müller
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, Civil Law, International Law, Commercial Law, Court case
- Page Range:38-46
- No. of Pages:9
- Keywords:case law; international arbitration; confidentiality; privacy; party autonomy; common law; civil law; persuasive/mandatory authority; precedent;
- Summary/Abstract:Given the characteristics of arbitration as an alternative dispute resolution method ― among those most relevant here being the confidentiality/privacy of the procedure and party autonomy ― do previous cases have a legitimate role in deciding a dispute? And, if so, should they play an important part in the economy of the decision? Are previous awards only persuasive authority or could Arbitral Tribunals be compelled to follow the reasoning of (certain) previous arbitral awards? The answer is not clearcut. Some Arbitral Tribunals seem to give weight to the wide adoption of a certain award. Other, seem to be influenced by their own legal background (if any) in giving more or less weight to previous cases considering that civil law and common law approaches to case law are different. The applicable law, as per the parties’ choice, is an issue too. And there is also the matter of the accessibility of the awards, which depends on the type of arbitration. As a matter of public interest, for investment arbitrations there are more awards available than in commercial arbitrations (given the inherent “cone of silence” surrounding the more private latter procedure). So, which of these factors should matter more? The objective of this present paper is not necessarily to give a definite answer, but rather to raise awareness on the issue for it to be properly addressed and considered by the parties to an arbitration, beforehand.
Alternative Dispute Resolution in Construction Contracts
Alternative Dispute Resolution in Construction Contracts
(Alternative Dispute Resolution in Construction Contracts)
- Author(s):Andrada Laura Tarmigan
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, Law on Economics, Court case
- Page Range:47-55
- No. of Pages:9
- Keywords:construction contracts; alternative dispute resolution; construction adjudication; expert determination; partnering techniques;
- Summary/Abstract:The construction domain is predisposed to disputes, due to the complexity of contractual relations and the multiple parties involved, Alternative Dispute Resolution („ADR”) is used for avoiding prolonged and expensive litigation and maintaining a collaborative relationship between the parties. The construction industry is one of the best examples for ADR use, no matter if we are discussing: general procedures such as negotiation/mediation or specific tools for this field such as: early neutral evaluation, expert determination, dispute adjudication board, dispute review board, mini-trial or partnering. The purpose of this paper is to present some of the less popular construction ADR methods and their key role in dispute avoidance and minimisation of damages. The research methods comprise a comparative analysis of legislation, doctrine and studies at an international level. The topic’s practical importance is constantly increasing due to the legislative changes that lead to an increased number of construction works that require, above all, efficiency.
Accelerated Arbitration: An Expedited Method of Resolving Disputes
Accelerated Arbitration: An Expedited Method of Resolving Disputes
(Accelerated Arbitration: An Expedited Method of Resolving Disputes)
- Author(s):Maria João Mimoso
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, International Law, Court case
- Page Range:56-67
- No. of Pages:12
- Keywords:accelerated; arbitration; commercial; disputes; procedural celerity;
- Summary/Abstract:When we speak of international commercial arbitration, we refer to arbitration that has as its object the resolution of commercial disputes on an international scale, between individuals or legal entities, whether these are companies or even States. In the vast majority of situations, we are dealing with commercial relationships of the most diverse nature, including international purchase and sale contracts, large-scale contracts, and license agreements in the field of intellectual property, among others. The advantages of international arbitration lie in its effectiveness when confronted with state justice, due to the neutrality of the arbitration forum, the precise knowledge of the arbitrators, the greater flexibility of the arbitration process, confidentiality, among others. However, it turned out that, in reality, there are problems. Over the last few years, the players have expressed some concerns, especially about the costs and the extension of procedural deadlines, which has made arbitration less appealing and increasingly equated with the justice of state courts. It should be noted that medium-sized companies are the most affected, either because they do not have the possibility of accessing this form of justice, not knowing it, or because they consider it to be very costly in view of the procedural costs it entails. With the purpose of harmonizing expedited arbitration, UNCITRAL created and made available on September 19, 2021, the Expedited Arbitration Rules that can be adapt by the parties. The figure of accelerated arbitration comes, therefore, to present itself as an optimized and simplified process, showing shorter deadlines so that disputes can be resolved quickly and economically. Given the novelty and importance of the subject, we intend to reflect on this new arbitration modality and its consecration by the most prestigious arbitration institutions, e.g. international Chamber of Commerce; American Arbitration Association; Arbitration Institute of the Stockholm Chamber of Commerce; Swiss Arbitration Association.
HoReCa Tourism Rights in National and European Union Law - Comparative Aspects
HoReCa Tourism Rights in National and European Union Law - Comparative Aspects
(HoReCa Tourism Rights in National and European Union Law - Comparative Aspects)
- Author(s):Laura Ramona Nae
- Language:English
- Subject(s):Economy, Law, Constitution, Jurisprudence, Law and Transitional Justice, Tourism, EU-Legislation, Commercial Law
- Page Range:68-76
- No. of Pages:9
- Keywords:tourist; European consumer; European institutions; hotel services/products; alternative dispute resolution methods;
- Summary/Abstract:In the tourism sector, especially in the HoReCa industry, the protection of the rights of customers-tourists consuming hotel services and products, is of particular importance. safety (including food). In the legislative context, mainly at the level of the European Union and at national level, a number of measures are accepted and implemented with the help of various legal instruments, in order to protect the rights of consumers, including alternative dispute resolution methods.
The European Problem Regarding the Acceptance, Integration and Prevention of Crime Towards Migrants and Refugees
The European Problem Regarding the Acceptance, Integration and Prevention of Crime Towards Migrants and Refugees
(The European Problem Regarding the Acceptance, Integration and Prevention of Crime Towards Migrants and Refugees)
- Author(s):Ana Campina, Carlos RODRIGUES
- Language:English
- Subject(s):Social Sciences, Law, Constitution, Jurisprudence, Criminal Law, International Law, Human Rights and Humanitarian Law, Sociology, Migration Studies, EU-Legislation
- Page Range:77-92
- No. of Pages:16
- Keywords:migration; refugees; international (re)action; human rights; international security;
- Summary/Abstract:The Migration in a global perspective is contemporary of the Human life, with the most different motivations, in each time and place, within the specific legal frame- works depending on the State law and the International Law. Consequently, in the human global mobility there are different positions and possibilities to these human beings by political, social, economic, and cultural powers. The continuous research is an academic and scientific need, being focus on the global migration and refugees, considering the international legal meaning. There are Regions and States where the Migrants and Refugees are welcome, accepted, and integrated, not only by the legal point of view but the governs behaviors, public policies, social reception, economic and financial support/investment, but in contrast, there are completely opposite positions generating serious problems since the denial to the abandon of millions of human beings. Since the Arab Spring, the reality for millions of Refugees is dramatic by the violation of the Human Rights, the International Law, and States Fundamental Rights. The Public Opinion is vulnerable to the manipulated information in different States, so it has provoked the discrimination, rejection, and violence against Migrants and Refugees. However, it ́s basic to understand the serious context as there are international movements, involving International organized crime acting with Migrants and Refugees – human trafficking, smuggling, exploitations, violence, and all kind of violations. The International Security – legal, protection and criminal (re)action, police authorities – between States and International Organizations have developed different reactions. This is a serious and difficult problem needing a permanent effective work of all structures to protect millions of Human beings. The European Union, working together the international community, as well as with the most different movements – public and/or private – need to develop a concerted and strategic work receiving and integrating the Refugees, which measures must cover and protect all in Europe, regardless their origin.
Comments on Current Regulatory Diversity under Public International Law
Comments on Current Regulatory Diversity under Public International Law
(Comments on Current Regulatory Diversity under Public International Law)
- Author(s):Cristina Elena Popa Tache
- Language:English
- Subject(s):Politics / Political Sciences, Politics, Social Sciences, Law, Constitution, Jurisprudence, International Law, Human Rights and Humanitarian Law, Public Law, Sociology, International relations/trade, Health and medicine and law
- Page Range:93-107
- No. of Pages:15
- Keywords:pandemic; treaties; human rights; industry; international relations;
- Summary/Abstract:The crises generated by the Covid-19 pandemic have become a major problem in front of which the states have started to reflect their interests as well as possible. Developments in this area are aimed at deepening bilateral and multilateral cooperation in various areas affected by global crises. The dynamics of international relations were mainly due to the adaptation of regulations to changes in interdependent relations between states and the diversification of their concerns, including for contemporary challenges such as those given by pandemics. Instruments specific to public international law are brought into the spotlight in cases such as pandemic prevention, preparedness and response or in areas such as artificial intelligence or financial technologies. In the face of these challenges, public international law manifests its regulatory function. However, not all states react at the same rate. It is difficult to predict how and if this goal will be achieved, so we will follow the significant developments in the near future. To make this article we used a fundamental research method (directed for the purpose of knowledge) on the part of research that identifies relevant issues, with prospective ramifications and identification of features that promote the coherence of hypotheses. The notions we referred to will be exposed by using the most efficient methods, such as exploratory, descriptive but also explanatory.
Tools for Official Relations in Public Activity - Disparities in Good Administrative Behaviour
Tools for Official Relations in Public Activity - Disparities in Good Administrative Behaviour
(Tools for Official Relations in Public Activity - Disparities in Good Administrative Behaviour)
- Author(s):Camelia Daciana Stoian, Cristian Măduța
- Language:English
- Subject(s):Politics / Political Sciences, Law, Constitution, Jurisprudence, Public Administration, Public Law, EU-Legislation, Administrative Law
- Page Range:108-113
- No. of Pages:6
- Keywords:relationship; abuse of power; good administrative behaviour;
- Summary/Abstract:The present research aims at the need to take up the example of the provisions of the European Code of Good Administrative Behaviour at the level of public administration of the member countries. In fact, the activities performed by civil servants or contractual staff in the public power regime, more precisely in the segment of law enforcement, in the segment of public service provision, have the same legal regime seen through the angle of interest of the citizen of the same member state as the citizen of the Union, or of any legal person. Any communication at official level has as its central point certain principles and limits imposed for reasons of private interest and categorical public interest. However, employees of the national public administration, viewed individually in conjunction with their own duties, have not implemented the procedural principles set out in the practice of the Court of Justice of the European Union with regard to 'limits' and do not have a methodology to follow in identifying a balance between the permitted degree of transparency of their work in relation to citizens' requests. At the same time, the way of decent expression of the justified impartial attitude in the legal and efficient solution of requests in the daily work with the public, has not implemented the standards of good administrative conduct aimed at guaranteeing the efficiency of the work and the quality of public service at the same time. The implications of this study aim to outline the essence of the obligation to adopt a Code of Good Administrative Behaviour at the level of each Member State, based on the citizen's right to good administration, on the case law of national and European courts and on the practical explanation of convergent coordinating lines such as, for example: legality and proportionality or the clear absence of abuse of power and honesty.
Brief Considerations on the International Dimension of Amending an Individual Employment Contract
Brief Considerations on the International Dimension of Amending an Individual Employment Contract
(Brief Considerations on the International Dimension of Amending an Individual Employment Contract)
- Author(s):Ana Vidat
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, International Law, EU-Legislation, Comparative Law, Labour and Social Security Law
- Page Range:114-128
- No. of Pages:15
- Keywords:individual employment contract; modification; international labour law; European Union acts; comparative law;
- Summary/Abstract:The aim of the paper is to analyse how the legal institution of the modification of the individual employment contract is regulated in (comparative) international law – so as to facilitate labour mobility and remove restrictions based on nationality or other specifically national reasons. The desire to highlight the features of amending an individual employment contract was motivated by the fact that labour mobility – with migration as the main outcome – has a particular impact on the development of the labour market. In order to achieve the objective of analysing various legal systems from a comparative perspective – with a view to identifying the specific features – it should be pointed out that adapting a work activity to technological or economic change may require changes to the individual employment contract under which that activity is carried out, given the inherent dynamism of employment relationships.
Insurance Fraud - A Global Problem
Insurance Fraud - A Global Problem
(Insurance Fraud - A Global Problem)
- Author(s):Mihaela Aghenitei
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, Criminal Law, International Law, Commercial Law, Comparative Law
- Page Range:129-137
- No. of Pages:9
- Keywords:legislation; insurance; unification; sanctions; anti-fraud solutions;
- Summary/Abstract:Fraud is closely monitored by insurance companies as well as by state bodies set up to enforce the law and take measures to prevent antisocial acts. If in other countries the fight against insurance fraud is regulated by specific laws, in Romania there are still incipient phases because people are not aware of the size of the phenomenon and the consequences. As regards the way in which insurance fraud is regulated, it differs depending on the need to introduce regulations in this area. We found the existence of uneven criminal provisions and sanctions, which differ from country to country. The purpose of this article is to compare the laws in the field of combating insurance fraud.
Competition between Criminal and Administrative Responsibility - Questions and Solutions
Competition between Criminal and Administrative Responsibility - Questions and Solutions
(Competition between Criminal and Administrative Responsibility - Questions and Solutions)
- Author(s):Ralitsa Voynova
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, Criminal Law, Administrative Law
- Page Range:138-148
- No. of Pages:11
- Keywords:ne bis in idem principle; concurring facts; administrative penal responsibility; proceedings with a criminal character; res judicata;
- Summary/Abstract:This article aims to present the essence of the Ne bis in idem principle from a doctrinal point of view, while at the same time emphasizing the more important practical issues in its application. The study also includes a synthesized comparative analysis of the case law of the Court of Justice of the EU, the ECtHR and some national courts. In the comparative analysis these questions are considered in particular - what are the criteria for assessing whether an administrative proceeding is defined as criminal and what are the most common hypotheses of competition between criminal and administrative penal responsibility against the same person for the same act. As a result of the research, some controversial questions regarding the applicable legal responsibility in cases of concurring facts were answered.
The Principle of Legality and the Retroactive Application of the More Favourable Criminal Law as Guarantees of the Protection of Human Rights Worldwide at the State Level
The Principle of Legality and the Retroactive Application of the More Favourable Criminal Law as Guarantees of the Protection of Human Rights Worldwide at the State Level
(The Principle of Legality and the Retroactive Application of the More Favourable Criminal Law as Guarantees of the Protection of Human Rights Worldwide at the State Level)
- Author(s):Alexandra Raisa Roşcan
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, Criminal Law, Human Rights and Humanitarian Law, EU-Legislation
- Page Range:149-160
- No. of Pages:12
- Keywords:principle of legality; retroactivity of the more favourable criminal law; European Convention on Human Rights; European Court of Human Rights;
- Summary/Abstract:This research aims to carry out a study on the evolution of the principle of legality in the international context, starting from the initial meaning of nullum crimen sine lege and arriving at its approach as a genuine human right. The research is carried out as a result of the analysis of conventions, pacts, books and jurisprudence of international bodies. Theories regarding the application of this principle by international tribunals will be identified, as well as the exceptional situations that led to its violation. This study also aims to address the issue of retroactive application of more favourable criminal law at European level. In this respect, it will be examined whether or not its application contravenes the provisions of the European Convention on Human Rights.
The Right to Silence
The Right to Silence
(The Right to Silence)
- Author(s):Alexandra Delia Sabău
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, Human Rights and Humanitarian Law, EU-Legislation, Court case
- Page Range:161-172
- No. of Pages:12
- Keywords:right to non-self-incrimination; right to silence; privilege against self-incrimination; European Court of Human Rights;
- Summary/Abstract:The right not to incriminate yourself is not expressly enshrined in the European Convention on Human Rights. This right also includes other names, such as the right to silence, which is a component of the general privilege against self-incrimination. Although the right to silence protects the suspect/defendant from a verbal expression of his/her guilt, the privilege against self-incrimination is more extensive, as it covers the use of other means of proof that can be obtained from the suspect/defendant by coercion, as well as the provision of data or incriminating information to the judiciary. The purpose of this study is to analyze the right to silence from the perspective of national and international law in relation to the provisions of Romanian law, international regulations, as well as the jurisprudence of the European Court of Human Rights. One of the research methods I propose to use is the comparative method, by addressing aspects of comparative law in order to highlight the similarities and differences aimed at regulating and applying this right on non-self-incrimination in Romanian and foreign legislation and jurisprudence. Through the logical research method, I aim to outline and issue valuable reasoning regarding the legal regime applicable to the subject that is the object of study of my research.
Opening Statements in Criminal Procedure
Opening Statements in Criminal Procedure
(Opening Statements in Criminal Procedure)
- Author(s):Ismail Zejneli, Betim Jahja
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, Criminal Law
- Page Range:173-184
- No. of Pages:12
- Keywords:opening statement; criminal procedure; criminal law; evidence;
- Summary/Abstract:Before proceeding to the presentation of concrete evidence, according to the CPL, opening statements must be presented. The trial begins with the opening statements. The plaintiff speaks first, then the defence counsel or the defendant. However, the defendant shall have the right not to give an opening statement. The earlier procedural provisions stipulated that the main trial begins with the reading of accusation. The provision of the CPL which is now in force provides for opening statements and stipulates that the main trial begins with the holding of opening statements. According to the principle of officiality, the charge expresses the function of prosecution - nemo iudex sine actore. Since the legislator relates the initiation of the main trial with the opening statements, and since the public prosecutor gives the opening statement first, it is implied that in that case he reads the bill of indictment. Something like that indirectly results in the case where after the plaintiff's opening statement, the presiding judge shall ask the defendant if he or she understands the accusation. In the opening statements, the parties may present which are the decisive facts they intend to prove, they may speak about the evidence that will be presented and establish the legal issues that are going to be subject of deliberation. In this regard, the parties in the opening statements can refer to admissible evidence, the law in force and can use tables, diagrams, transcripts of tapes allowed by the court, summaries and comparisons of evidence if they are based on admissible evidence, as well as enlargement of their specimens to demonstrate or present to the court as an illustration. In the opening statements, presentation of facts regarding any prior convictions of the defendant shall not be permitted as part of the statements nor shall the parties not be allowed to comment on the allegations and proposed evidence by the other party.
