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The international jurisdiction, between the state sovereignty and the need of sanctioning the atrocities

Author(s): Gabriel-Liviu Ispas,Alexandra Mălina Mânea / Language(s): English Issue: VI/2012

In the international contemporary society, many of the atrocities are committed either in the name of an undemocratic state power, or to express some political or religious beliefs. The deeds are being difficult to sanction on the territory of the state in which they have been committed, because of the close relation that exists between the culprit and the political power. In this context, they have developed the concept of universal jurisdiction, which should ensure the application of the law beyond its jurisdictional space, specific for the state sovereignty. Through the article, it is set forth the notion of universal jurisdiction, the cases of its application and the advantages and disadvantages of its exercise..

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PRECAUTIONARY PRINCIPLE RELATED ON FOOD SAFETY

Author(s): Petruţa-Elena Ispas / Language(s): English Issue: VI/2012

By this study we will try to present the precautionary principle regulated in General food law by defining the principle, presenting a short history of it and two important cases law. In our opinion, it`s very important to know all those principles established in Regulation 178/2002 because it`s crucial for our safety and for our security to know that in case of danger, authorities will fight for us.

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GLOBALIZATION – TOWARDS INTERNATIONAL GOVERNANCE

Author(s): George Juncu / Language(s): English Issue: VI/2012

Before joining the European Union both the Romanian authorities as well as the less informed citizens lived the story of thinking that our European integration will bring us only economic growth and prosperity. Now the things are changing, we have seen on the one hand, that the integration is far to be over, being actually a very long process and on the other hand, the institutional form of the European Union as we knew it is also under change, a very proper field for Euro skeptics to say: “where are we actually integrating?”The world is passing through delicate moments, terrorism, drugs, natural disasters and it seems that one solution should be applying the concept of globalization.But this solution has also its problems and unfortunately this process have a lot of enemies because the institutionalization of global politics can discover new ways of solving the conflicts at global level.Globalization means identifying the social relations in the whole world, connecting places from different sides of the world, mutual interdependence, unity in diversity and even more significant, a substantial reduction of poverty.

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INTERFERENCE BETWEEN TERRORISM AND ORGANIZED CRIME

Author(s): Dan Voinea / Language(s): English Issue: VI/2012

This article presents some problems about resurgence of terrorism and organized crime. These phenomena are paramount objectives of specialized agencies within the state, both nationally and internationally. The author presents some aspects regarding the interference between terrorism and organized crime.

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THE APPLICABILITY OF INTERNATIONAL LAW TO CYBER ATTACKS

Author(s): Daniela Panc (Dancă) / Language(s): English Issue: VII/2013

Access to information and communication technologies defines modern society and establishes moreover new challenges and threats to international cyber security. This paper offers insight on the legal implications of cyber attacks, emphasizing the terminology differences between concepts relevant to cyber space operations (cyber crime, cyber espionage, cyber warfare). The lack of treaties or customary regulation of this distinctive domain, justifies the approach to apply existing international law to cyber attacks – this article pays particular attention to the applicability of jus ad bellum provisions. As cyber operations are considered the new military frontier, there is strong debate on whether the war has entered the fifth domain – cyberspace.Moreover, this paper focuses on the reaction of states and international organizations with regard to threats posed by unlawful cyber operations (especially after the 2007 cyber attack on Estonia). Global challenges require global cooperation, the non-binding Tallinn Manual being one of the most important proofs that reinterpretation and revision of international law regarding cyber warfare is needed. The attitude towards the cyber threat proves that cyberspace has become of geo-strategic importance for the states. The brief case study on Stuxnet cyber weapon is representative for identifying the most important elements regarding cyber attacks.

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LEGAL CYBERNETICS

Author(s): Gabriel-Liviu Ispas,Mihai Childesco,Raluca Amariei,Valentin Gherghiceanu / Language(s): English Issue: VII/2013

Cybernetics is a new concept of current scientific vocabulary that caused fundamental changes in scientific and methodological thinking, defined as a scientific discipline that studies the general principles of management and control process at beings and machines, as well as the connection with statistical mechanics.

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PREJUDICE WITHIN LIABILITY OF INTERNATIONAL ORGANIZATIONS REFLECTIONS ON ISSUES OVER ESTABLISHED ASPECTS IN ILC PROJECT REGARDING LIABILITY OF INTERNATIONAL ORGANIZATIONS-

Author(s): Felicia Maxim / Language(s): English Issue: VII/2013

Responsibility of international organizations was raised in 1963 by the report of Erian on relations between states and intergovernmental organizations. The report shows that the role of organizations is increasingly higher and this aspect leads us to look at the liability of international intergovernmental organizations more closely. In 2011, the International Law Commission (ILC) adopted the project and submitted to the Governments of the Member States of the UN. By resolution 66/98 of 9th December 2011 the UN General Assembly took note of the Draft articles on responsibility of international organizations and decided to include the topic in the provisional agenda of the sixty-ninth session, which will be held in 2014. Development of the Draft articles on responsibility of international organizations, as well as the liability of states case, was characterized by controversy over issues wanted to be covered, in the end being considered the rule of general applicability. Thus the classification of prejudice from sine qua non prerequisite to the production of internationally wrongful consequence caused lengthy analysis leading to the conclusion that the injury is not a necessary element triggering the liability of international organizations.

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REVISED UNCITRAL ARBITRATION RULES - NEW PROVISIONS IN INTERNATIONAL COMMERCIAL ARBITRATION

Author(s): Carmen Pălăcean / Language(s): English Issue: VII/2013

UNCITRAL Arbitration Rules in effect from August 15th, 2010 contain a number of new provisions that improve the original version of UNCITRAL from 1976. Among the main new provisions we can mention are: Art. 4 (Response to notification of arbitration), Art.10 (Appointment of arbitrators and of multiple parties), Art. 16 (Exclusion of liability), Art. 17 (5) (Joining of third party or third party), Art. 41 (Costs of arbitration, arbitration expenses), Art. 26 (Interim protection measures) was completely revised. Revised UNCITRAL Rules are, according to the latest trends in international arbitration, representing a true reform awaited not only by practitioners but also by the parties.

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MANDATE FOR FUTURE PROTECTION IN THE FRENCH LAW. INTERFERENCE WITH THIRD-PARTY ASSET MANAGEMENT

Author(s): Mihnea Alexandru Angheni / Language(s): English Issue: VIII/2014

It is interesting to notice that, even though the French law is unfamiliar with the institution of third-party asset management, it nevertheless provides, by means of other regulations, conventional protection measures in relation to the property of disables persons, irrespective of the disability's cause.Thus, apart from the traditional judicial protection measures, i.e. guardianship, conservatorship, judicial supervision, the French Civil Code provides under art. 428 a subsidiary legal regime for the legal protection of "vulnerable" adults, pre-endorsing the principle of subsidiarity.The legal institution of the "Mandate for future protection” is defined in the doctrine of speciality as being the legal possibility recognized to each person capable to appoint, for the "days" when he/she will no longer be able to manage his/her own assets and accomplish his/her interests, one or several authorised representatives. This mandate creates a representation regime, without involving the representative's incapacity.

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INTERNATIONAL JURIDICAL COOPERATION IN THE FIELD OF SPECIAL INVESTIGATION METHODS

Author(s): Diana Boroi / Language(s): English Issue: VIII/2014

The alarming increase of border criminality, the need to prevent and fight more efficiently in an organized frame at an European and worldwide level has determined the adoption of some international instruments, area and regional ones that can unify the efforts of all states. In this sense special investigation techniques are used by competent authorities within criminal inquiries in order to detect suspects and to raise information to prove the criminal activity. The establishment of a freedom space, of justice and security, this is a wish declared and undertook by the European Union, and cannot be achieved in the context of perfecting the juridical cooperation in criminal matters between member states

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THE DEFENDANT'S REFUSAL TO PAY THE ADVANCE ON THE ARBITRATION COSTS. IDENTIFYING THEORETICALLY GROUNDED SOLUTIONS FOR THE CONTINUATION OF THE ARBITRATION

Author(s): Tudor-Alexandru Chiuariu / Language(s): English Issue: VIII/2014

One of the circumstances that prevent the completion of arbitration is the tactic used by the defendant to refuse payment of the advance on arbitration costs, in which case this obligation rests with the claimant, and if he does not pay the defendant’s share the arbitration comes to a standstill. This article analyzes theoretically grounded solutions to overcome this situation and how these are reflected in the case law.

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JURIDICAL TRANSPLANTATION OF INTERNATIONAL REGULATIONS IN NATIONAL LAW

Author(s): Emilian Ciongaru / Language(s): English Issue: VIII/2014

In conditions of full equality of rights, sovereign states, create legal rules which fundament the public international law. Considering that, treaties but also other sources of public international law, are formed by the free expression of the will of the states and of other subjects of specific legal relations, for the regulation these relations between them legal rules, contain dispositions of application, by which is provided voluntarily compliance and if necessary, by coercive measures applied by states, individually or collectively. The coordinator character of the will of states forms the basis for obligativity of international law, of implementation and of respect of its rules. Norms or rules of international law, have not dispositions wich to stipulate way in which to make legal transplanting of international regulations in the national law, this being exclusive appreciation of the sovereign state, if in treaty does not provide otherwise. Thus, legal rules binding, in relations between states, constitute creation of their own will, freely expressed, how this result of international conventions or customs accepted as expressing the rule of law.

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COUNTERMEASURES IN LIGHT OF THE INTERNATIONAL LAW COMMISSION’S WORKS

Author(s): Felicia Maxim / Language(s): English Issue: VIII/2014

The term countermeasures has been subject to a sinuous development, coming in international law by means of successive borrowings. Countermeasures are considered reminiscent elements of private law, being identified as “violent procedures” of making justice for the purpose of punishing the author of a wrongful action and obligating them to make reparations of the damage caused. A specific meaning seems to be noted by the contemporary school of law, an interpretation which has found support also in the arguments of the International Law Commission (I.L.C.). The existence of a wrongful action is considered to be the precondition of exerting countermeasures, thus we have to refer to the provisions of art. 2 of the Draft Articles on State Responsibility for Internationally Wrongful Acts prepared by I.L.C. In order to have a wrongful act to justify the exertion of countermeasures, the state’s action must constitute a violation of its international obligations, attributed to the state involved in light of international law. This way, the Commission adopts a new vision running counter to the traditionalist norm setting stance, which considers that the victim state is the only one in a position to appreciate the wrongful act of another state. Such a position is not incorrect if we consider the differences determined by establishing the conditions for the states’ responsibility for wrongful acts. Countermeasures can be taken by the victim state in order to obligate the state author of the act to meet its obligations assumed at international level, to end the wrongful conduct and to provide the necessary reparations to the injured state. The fundamental condition is, as already pointed out above, the existence of the wrongful act against which the state has to resort to countermeasures.

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INTERNET GOVERNANCE

Author(s): Adrian Cristian Moise / Language(s): English Issue: VIII/2014

Internet growth caused various problems for the information society which refers to technical, management or public policies aspects, thus showing that Internet needs better governance in order to be able to control them.This research proposes to unitarily present and analyze problems related to Internet governance. Internet governance is analyzed from the point of view of fundamental principles of Internet Law, democracy and self-regulation principle.

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REGULATIONS REGARDING NATIONAL AND INTERNATIONAL ARBITRATION. THE NEW REGULATION IN THE ROMANIAN LAW

Author(s): Carmen Pălăcean / Language(s): English Issue: VIII/2014

Arbitration has represented a means of solving civil disputes since Antiquity. Starting with the 20th century, arbitration has become the preferred form for solving litigations deriving from international trade operations. On the basis of the parties’ agreement, the disputes are submitted to be solved, according to the parties’ agreement, to some arbitrators designated for certain cases or to some permanent institutions of arbitration, which have the duty to judge the dispute and to pronounce a decision, which the parties commit to execute. Due to its generalization and importance, the institution of arbitration is regulated by national laws and international agreements, both bilateral and multilateral.

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AD-HOC ARBITRATION AND INSTITUTIONAL ARBITRATION. REGULATION, GENERAL RULES AND ELEMENTS OF NOVELTY

Author(s): Carmen Pălăcean / Language(s): English Issue: VIII/2014

Commercial arbitration is a jurisdictional system derogatory from the common law, through which the arbitrators chosen by the parties solve the dispute and pronounce a decision that the parties commit to execute. The insertion in a commercial contract of the arbitration clause entitles the interested party, in the case of a dispute, to ask for its resolution by arbitration, being excluded thus the competence of the courts. The traditional modality of organization of arbitration – the ad-hoc form – has currently become more and more absent entering an irreversible decline. Although its legal expression is still found in different texts of law, the ad-hoc arbitration does not represent anymore a desired and preferred alternative, the institutional arbitration being the most favored form of the parties.

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THE EFFECTS OF THE TREATIES theoretical and practical aspects

Author(s): Felicia Maxim / Language(s): English Issue: IX/2015

The changes that occurred in the 20th Century have led to intensifying the relations between the states, which, in turn, has led to rendering the treaty autonomous within the sources of international law. Thus, the fundamental role of the treaties in international society cannot be challenged, these being considered the main means of expressing the norms of international public law. The frequent use of the treaty in order to create rights and obligations at international level has given rise to an increased interest in codifying the rules in this field. Among the multitude of the aspects regulated by the Vienna Convention of 1969, the latter pays special heed to the effects of the treaties to the parties, and also to the aspects regarding the effects of the treaties on third parties. The effects of the treaties on third parties are coordinated by two internationally recognized principles, instated both by means of customs law and conventionally, namely: the principle of meeting the international obligations in good faith and the principle of relativity of the effects of the treaties. Instated as fundamental principle in international law, the pacta sunt servanda principle is recognized as being of utmost importance to the treatise law, as its scope is the entire field of international agreements. According to relativity of the effects of the treaties, the application of a treaty is limited, in principle, to the party states and to their mutual relations, which rules out the occurrence of effects to third parties -pacta tertiis nec nocent nec prosunt. The unanimous recognition of the principle of relativity of the treaties in international law does not prevent the identification of the exceptions to this principle, in respect of creating either various obligations to or rights in favour of third party states. The observance of international treaties involves ensuring the application of the same in the domestic law of the states. A party state cannot invoke the provisions of its domestic law to justify a failure to perform under a treaty.

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REGULATION (EC) NO. 593/2008 (ROME I) SPECIAL RULES TO DETERMINE THE LAW APPLICABLE TO INSURANCE CONTRACTS

Author(s): Maria Carolina Niţă / Language(s): English Issue: IX/2015

Insurance contracts having a cross-border extent form the subject of special provisions in Article 7 of Regulation (EC) no. 593/2008. These specific rules govern insurance contracts for large exposures located in or outside the European Union and all joint contracts covering risks located in Member States. Reinsurance contracts are excluded from application of special provisions, following the regime of the general rules of Art. no. 3 and 4 of the Regulation. As regards to the law applicable, the insurance contracts for major risks are subject to the law chosen, or if there is no choice, to the law of the place where the insurer has his habitual residence and insurance contracts of common risks, located in Member States, are governed at choice by one of the laws mentioned in Art. 7 par. (3) of the Regulation, which provides the connection between the law chosen and the specific legal relationship. In the absence of choice, will apply the law of the Member State where the risk is situated when the contract was concluded. If this contract covers risks situated in several Member States in order to determine the applicable law, the contract is considered separately from as many contracts as the number of Member States involved.

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Czech perspective on validity of international arbitration clauses contained in an exchange of emails under the New York Convention

Author(s): Petr Bříza / Language(s): English Issue: 4/2020

The article deals with the writing requirement of the arbitration clause under the New York Convention (the “Convention”). The discussion has been triggered by the recent Czech Supreme Court decision on the formal validity of an arbitration clause contained in an exchange of emails. The author first recalls the drafting history of the Convention and rationale behind the writing requirement. Then he analyses its interpretation in the practice of court before and after the 2006 UNCITRAL Recommendation, which suggested extending the interpretation to modern forms of communication such as email. The main part of the article closely scrutinizes the Czech Supreme Court’s decision on the issue. The Court followed the 2006 Recommendation and the majority of its foreign counterparts. However, it also had to deal with the question of whether an email has to be accompanied by a qualified electronic signature for the written form to be met, as this is (unfortunately) the Court’s requirement when it comes to relations governed by Czech law. Fortunately, the Court has taken an international approach looking both to foreign courts’ practice and to its own case-law under other international conventions such as the CISG or the CMR. Thus it has arrived at the conclusion that the writing requirement under the Convention is met also in the case of an arbitration agreement contained in an exchange of simple emails.

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Recognition and enforcement of judgments in commercial matters rendered by courts of non-eu countries in the Czech Republic

Author(s): Magdalena Pfeiffer,Marta Zavadilová / Language(s): English Issue: 4/2020

The article deals with the conditions under which Czech courts recognise and enforce judgments rendered in commercial matters by courts outside of the EU. The relevant rules on recognition and enforcement are contained in both the Czech Act on Private International Law and in a number of international treaties binding for the Czech Republic. The authors analyse in detail the Czech national rules with particular emphasis on grounds for non-recognition and on the enforcement procedure, including relevant national case-law. As the Czech Republic is bound by a significant number of bilateral treaties on legal assistance that contain relevant provisions, the authors also bring a brief overview of the rules therein.

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