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Analysis of the FIDIC arbitration clause in the light of international jurisprudence

Author(s): Agnieszka Dąbrowska / Language(s): English Issue: 1/2019

The aim of the paper is to present the subject matter related to the procedure of resolving disputes arising in connection with implementation of agreements concluded on the basis of contract models published by the international federation FIDIC in 1999 Red and Yellow Book. The intention of the authors of the FIDIC templates was to apply an autonomous multistage procedure (the so-called multi-step clause) for resolving disputes based on arbitration without taking the matter to court. However, the application of the procedure proposed by FIDIC raises controversies of legal and factual nature. The problems concern, in particular: the nature, immediate enforceability, contestability of decisions issued by the Dispute Adjudication Board (DAB) and methods of their reinforcement. Other issues concern the absence of ‘standing’ or ‘full-term’ Adjudication Board and the right to arbitration in case when a party violates the internal dispute resolution procedure described in the contract, both for reasons dependent on and beyond its control. The publication is of legal and comparative nature and contains the analysis of related jurisprudence of civil law systems of selected countries.

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Klauzula przeciwko unikaniu opodatkowania jako norma znajdująca do 31 grudnia 2018 r. zastosowanie ex lege

Author(s): Mikołaj Kondej / Language(s): Polish Issue: 1/2019

The article dicusses whether polish general anti-avoidance regulations (GAAR), in the wording applicable to 31 December 2018 r., were supposed to be applied by a taxpayer during calculation of due tax or was is only the tax authorities that were authorized to apply GAAR during a tax proceeding. The author claims that the GAAR was applicable ex lege. He critize amendments to the tax ordinance introduces as of 1 January 2019 leading to discretionary power of the tax authorities to apply GAAR.

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Zakres tajemnicy zawodowej a obowiązki informacyjne względem rady nadzorczej w spółce komandytowo-akcyjnej radców prawnych

Author(s): Marcin Śledzikowski / Language(s): Polish Issue: 1/2018

Legal advisers may practice their profession within the framework of employment on the basis of a civil-law contract, in a legal adviser’s law office, a civil-law partnership, or another partnership. The choice of legal form of organization entails certain consequences, both for legal advisers themselves and for their clients. Carrying out business activity that consists in providing legal assistance in the form of a limited joint-stock partnership has been an interesting and increasingly more popular solution among legal advisers – predominantly due to business considerations. In this respect, however, it is important to determine the relations between the professional secrecy of legal advisers and other bodies in the corporate structure of the partnership, in particular the supervisory board, which supervises the general partners, i.e. legal advisers running the partnership’s affairs. In the article, the author presents the conflict between legal advisers’ obligation to keep professional secrets and the scope of the supervisory board’s activity – the latter existing at first glance but being merely pro forma. Firstly, the objective scope of the legal advisers’ obligation to keep professional secrets and their possible disclosure are analyzed. Next, the supervisory board’s basic oversight rights and obligations in a limited joint-stock partnership are discussed. Subsequently, the author examines the ad rem obligation of legal advisers to provide information to the supervisory board while making the distinction between information covered by professional secrecy and information exempted from this obligation. The article closes by presenting the most important conclusions drawn from the aforementioned analysis.

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O żądaniach alternatywnych pracownika z art. 45 Kodeksu pracy

Author(s): Michał Żemojda,Marcin Skonieczny / Language(s): Polish Issue: 1/2018

This article assesses the provisions of the Labour Code, including case law, on alternative claims of employees (Article 45 of the Labour Code) arising thereunder in the event of defective notice or termination of employment. The article contains a justification for the authors’ stance on the need to allow for the modification of claims during the trial before a labour court to the fullest extent possible. The authors’ arguments are supported by references to current views expressed in both commentaries and case law, and further contain an assessment of the dissenting opinion issued at the Supreme Court level (court file No. II PK 264/15). The intention behind the article has been to present the issues, to the extent necessary, by supplementing the arguments with the dominant and established position taken in case law. The authors further buttress their line of reasoning with arguments derived from the principles of labour law and the provisions of the Constitution of the Republic of Poland. Due to the current and, in the hopes of the authors, short-lived departure from the rule and from the need to protect the employee and decide in favor of the employee’s rightful interests as the weaker party in the employment relationship in the above-mentioned judgment (court file No. II PK 264/15) it is necessary to consider the question discussed in its entirety by presenting issues in light of legal advisers’ practice and in a way that is at once simple and takes into account the complete body of legal writing on the subject, including the most recent commentaries.

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Dopuszczalność zmiany przez pracownika roszczenia w toku postępowania z odwołania od rozwiązania umowy o pracę

Author(s): Beata Bury / Language(s): Polish Issue: 1/2018

This article addresses the issue of employees changing claims during the course of proceedings on appeal against termination of a contractual employment relationship. The direction of such changes may vary and is not limited merely to the stage that precedes bringing an action; furthermore, the change may occur during the course of proceedings. The provisions of the Labour Code do not offer any guidance on this matter.

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Efektywność ekonomiczna jako dyrektywa wymiaru kary. Perspektywy i zagrożenia dla wymiaru sprawiedliwości, uwagi de lege ferenda

Author(s): Szymon Kosatka / Language(s): Polish Issue: 2/2019

The article draws attention to the possibility of applying an economic legal analysis at the stage of applying the law by the Court in the form of a penalty for a specific crime. He notes the basic problem in reconciling two seemingly contradictory features, i.e. punishment justice with its economic effectiveness. The article recognizes the benefits of penalizing the economic efficiency, as well as the risks associated with the application of economic law analysis in determining the amount and type of penalties. The author also refers to the economic effectiveness of a fine and imprisonment from the perspective of the objectives to be met by the sanction imposed by the Court. At the end, he made a proposal to amend the existing law on penalties directives.

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PRECARIOUS WORK: LEGISLATIVE CHALLENGES

Author(s): Raluca Anderco / Language(s): English Issue: 1/2019

The article aims to briefly review some of the key theoretical aspects of precarious work in Romania, starting from the analysis of the factual situation existing at the moment. We will also analyze official statistical information, in relation to European legislation, highlighting the usefulness and weaknesses in the phenomenon of precarious work and its dynamics over time. Last but not least, we will enumerate the legal, quasi-illegal and illegal forms of precarious work in today's Romania (identification, formal description and a brief discussion of socio-economic implications), as well as legislative lacunae existing at this time. Finally, we will refer to case studies that illustrate every form of precarious work analyzed in this article, with reference to both domestic and European legislation: e.g. poor work in the rural population, precarious work through pricing of atypical contracts, precarious work as a fake form of individual labor contract, "domestic" workers, etc

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Fundacje prywatne jako element liberalizacji polskich przepisów o spadkach. Refleksje na gruncie stanu prawnego republiki Austrii i księstwa Liechtenstein

Author(s): Artur Tim / Language(s): Polish Issue: 109/2018

No regulation in the Polish legal order makes it possible to cumulate different kinds of assets for the succession planning purposes in a comprehensive enough and a safe way. Polish inheritance rules provide residents rather with a possibility to distribute assets in case of death than to establish a base for effective succession and for protection of family interests. These circumstances, together with geographical proximity of jurisdiction, which adopted institutions making it possible to cumulate assets for succession purposes, encourage Polish citizens to transfer capital abroad and to establish foreign vehicles, in order to create the effective succession planning structures. This effect is even more visible in the era of existing the freedoms of the European Union and European Economic Area, digitalization and globalization. This state causes losses for the Polish economy. In the Article the Author presents the essence of introducing private foundations into the succession planning structures, drafts private foundations rules in the Republic of Austria and the Principality of Liechtenstein as well as formulates de lege ferenda proposals for the Polish legislature. The Author stresses, basing on the example of the Republic of Austria, that when private foundations were introduction to the Polish domestic legal order, not only an outflow of the capital from Poland should be stopped, but also the inverted trend could be perceived.

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Rozwój gig economy jako wyzwanie dla sfery regulacji rynku pracy

Author(s): Izabela Ostoj / Language(s): Polish Issue: 110/2019

Gig economy constitutes a relatively new term, which emerged during the global crisis 2007+. The paper attempts to explain and systematize the features of work in this new economy segment. Moreover the conclusions were drawn based on the discussion in the literature concerning the status of the service providers operating in this segment. The paper provides the arguments confirming the hypothesis that the new mean to shape the relations between a service provider and a service purchaser requires appropriate regulations, which take into account their specificity. The article employs the critical literature analysis method on the most recent references as well as the analysis of the cases from the economies affected by gig economy development, which already concerned this issue. Based on the above it was proved that gig economy starts to function as an independent term within the new specific business model, in which service providers shall be recognized as employees. However, it is also possible to create the conditions in the gig economy, in which service providers may gain the self-employment status.

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Rola państwowej własności korporacyjnej — pomiędzy budowaniem wartości spółek a odpowiedzialnym rozwojem

Author(s): Leszek Bohdanowicz / Language(s): Polish Issue: 4/2019

State-owned enterprises are subject to numerous analyses around the world. In many studies, they had been assessed critically. Nevertheless, the state remains the owner of companies in many countries, in particular in strategic sectors of the economy. The article reviews and synthesizes results and conclusions of Polish and foreign studies on state-owned companies. On their basis, it also proposes recommendations for companies and regulators. The main aim of the paper is to assess the significance and causes of state ownership, to indicate areas in which state ownership can be more effective than private ownership as well as factors that may contribute to the improvement of the functioning of state-owned enterprises.

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REGULATION OF THE INDIVIDUAL LABOUR CONTRACT IN THE WORKING CODE OF THE REPUBLIC OF ALBANIA

Author(s): Dan Ţop / Language(s): English Issue: 4 (45)/2019

The Labour Code in Albania, promulgated by Law No. 7961/1995, comprises 205 articles structured in 19 chapters. Both the individual labour contract in Chapter V andimportant aspects for the conclusion and performance of the contract such as: the form, thecontent and the main clauses that may be inserted in this contract are regulated. Under theAlbanian Labour Code, various precarious work contracts: fixed-term work, part-time work athome and temporary agency work.

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TRADE UNION RIVALRY AND ITS IMPACT ON LABOUR RELATIONS: THE CASE OF BOTSWANA

Author(s): Tshukudu Theophilus Tebetso / Language(s): English Issue: 4 (45)/2019

This paper investigates the public sector trade unions rivalry in Botswanaand its impact on union-employer relationship. The place of trade unions in socio-economicsetup decides about more pluralistic or corporatist of a democratic institution. The biggestcontention that that led to the simmering and skirmishes is premised on the issue of whoshould legitimately represent public servants at the newly formed Botswana Public SectorBargaining Council. There are several evils in union rivalries. First, they lead to jurisdictionalcontests, which may harm innocent and neutral employers as well as the public. Second,they limit the extent to which unions can discipline their members and make theircommitments effective. Third, they limit the effectiveness of the labor movement ininfluencing the course of public affairs. Fourth, they result in unsympathetic publicity, whichwhips up sentiment in favor of punitive legislation. Such legislation may be harmful to thecause of legitimate, responsible trade unionism. This paper therefore recommendsstrategies for the promotion of peace in the Botswana Public Service Sector. It is stronglyrecommended that the warring parties must unite against the employer as opposed to beingdisunited and weak.

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TRADE UNION RIVALRY AND ITS IMPACT ON LABOUR RELATIONS: THE CASE OF BOTSWANA

Author(s): Tshukudu Theophilus Tebetso / Language(s): English Issue: 4 (45)/2019

This paper investigates the public sector trade unions rivalry in Botswana and its impact on union-employer relationship. The place of trade unions in socio-economic setup decides about more pluralistic or corporatist of a democratic institution. The biggest contention that that led to the simmering and skirmishes is premised on the issue of who should legitimately represent public servants at the newly formed Botswana Public Sector Bargaining Council. There are several evils in union rivalries. First, they lead to jurisdictional contests, which may harm innocent and neutral employers as well as the public. Second, they limit the extent to which unions can discipline their members and make their commitments effective. Third, they limit the effectiveness of the labor movement in influencing the course of public affairs. Fourth, they result in unsympathetic publicity, which whips up sentiment in favor of punitive legislation. Such legislation may be harmful to the cause of legitimate, responsible trade unionism. This paper therefore recommends strategies for the promotion of peace in the Botswana Public Service Sector. It is strongly recommended that the warring parties must unite against the employer as opposed to being disunited and weak.

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Administracyjnoprawna ochrona konsumenta na rynku finansowym

Author(s): Andrzej Michór / Language(s): Polish Issue: 1(3)/2018

Protection of the consumer who is active on the financial market, by means of administrative law, is one of the essential elements of legal protection granted to the consumer on the financial market. It is expressed in interference in civil relations of the parties to the agreements and in making the law, exercising the license function and applying administrative sanctions.

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Podstawowe zasady postępowań restrukturyzacyjnych

Author(s): Jonasz Kita / Language(s): Polish Issue: 2/2018

The restructuring law in force in Poland for two years is still a young branch of law, mainly based on bankruptcy law, which is referred to by the judiciary and doctrine. However, despite the many similarities that combine somehow the two legal acts, i.e. the restructuring law and the bankruptcy law, one should point to some differences already existing at the foundation of these legal acts, i.e. the principles on which they were based. These principles constituted the basis for legislative work, as well as now constitute the main interpretation of the restructuring law. The main purpose of restructuring proceedings is to preserve the debtor’s enterprise, which, as a consequence, generates a lot of positive effects, in this that it helps to achieve the second of the prime objectives of the proceeding, i.e. to satisfy the debtor’s creditors. Other important measures that are supposed to be a consequence of the application of regulations based on the principles described in this article are also those affecting the awareness and mentality of entrepreneurs, among whom there is still a widespread belief that filing for bankruptcy involves bankruptcy, the inability to recover their debts, which causes frequent lack of willingness to take active actions on the part of creditors. Restricting the restructuring law on the described principles is to provide multiple benefits – ensure the debtor’s further existence, satisfy the creditors and maintain stability in the economic market.

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Informatyzacja rejestrów przedsiębiorców

Author(s): Justyna Matusiak,Agnieszka Wojcieszak / Language(s): Polish Issue: 2/2018

The article deals with the problem of computerization of business registers from the point of view of legal acts introduced into the current Polish legal system. The authors in their considerations focus on the presentation of doubts and legal issues related to the computerization of the two most important business registers: CEIDG and the National Court Register. First and foremost, the program documents relating to the development of the information society were analyzed. In addition, the authors also referred to the key – from the potential entrepreneur’s point of view – issues related to the functioning of the ePUAP trusted profile, the CEIDG computerization and the S24 Portal connected with the registration procedure of commercial law companies.

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Automated personalised pricing practices online

Author(s): Gergely G. Karácsony / Language(s): English Issue: 4(2)/2018

The paper discusses the problem of practices of online automated personalised pricing in Internet-based trading. The first part concerns the economics of price discrimination; the second discusses the ways this can be carried out in an online shopping environment, and the third one deals with legal aspects of the personalised pricing online practice. Finally, the author tries to assess the question whether personalised pricing is illegal, immoral, or just something we do not feel entirely comfortable about.

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Propozycja wprowadzenia mediacji podatkowej

Author(s): Jarosław Dobkowski / Language(s): Polish Issue: 3/2019

The article regards the state of significantly advanced efforts in Poland to introduce the institution of mediation into tax proceedings. The study presents both the background of the matter, as well as general trends. The content of the suggested legal provisions is also characterized. Some reservations have been voiced in this regard – however, without denying the purposefulness of introducing the institution of tax mediation. The advantages and disadvantages of the new regulations are also presented.

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LEGAL AND REGULATORY FRAMEWORK FOR STRATEGIC MANAGEMENT OF STATE JOINT-STOCK COMPANIES IN UKRAINE

Author(s): Iryna Ratynska / Language(s): English,Polish Issue: 1/2019

The article analyzes the features of the existing legal framework of strategic management ofstate joint-stock companies in Ukraine. It was established that Ukraine has formed a regulatoryframework for the management of state-owned companies, which is typical for a decentralizedsystem of management of state-owned objects. It was covered that the formation of the modernregulatory framework of this activity took place in 3 stages. For all stages, it is characteristicthat at each of them long-term planning of development of the public sector of the economyhad declarative, exclusively formal character. It was found that on the one hand, in the currentnational legislation, at the state level of management of joint-stock companies of the publicsector of the economy, an unlimited number of too detailed program and forecast documentsare recorded. On the other hand, the priority and coordination of such documents have notbeen established. In addition, the attention is focused on the fact that in the national legislationthere was a consolidation of the contradiction between the strategic and operational managementof state joint-stock companies.

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METHODS OF PREVENTING DOUBLE TAXATION IN THE AREA OF PERSONAL INCOME TAXATION INCLUDING THE RULES OF FREE MOVEMENT OF WORKERS

Author(s): Krzysztof Żuk / Language(s): English,Polish Issue: 1/2019

In European Union countries, income from hired labor is taxed in the country in which thework is done. Regardless of this, taxpayers who are subject to unlimited tax liability in Polandare obliged to settle this income also in Poland. To avoid double taxation of the same income,double taxation conventions are concluded between countries. They provide for two methodsof avoiding double taxation: the exclusion method with progression and the method of proportionaldeduction (credit, tax credit). Certain double taxation conventions concluded by Poland,exempt from taxation in Poland the income from hired work performed in another country(taxed in the country in which the work was performed). These incomes are taken into accountin the annual settlement submitted in Poland only when the taxpayer also achieved incomesubject to taxation in Poland on general principles. Income from work abroad, exempted fromtaxation under a bilateral agreement, is then used to determine the interest rate, which will thenbe applied to the taxation of income in Poland.

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