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Actualitate internaţională – Martie 2014

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Actualitate internaţională – Martie 2014

Author(s): Bogdan Aurescu / Language(s): Romanian Issue: 04/2014

The section contains a presentation of the most important cases brought before the International Court of Justice, the International Criminal Court and the Special Criminal Courts, and also a review of the treaties or agreements which were concluded, the conferences that were organized and the celebration of significant events with both international and national impact.

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Classification and formulation of local regulation products based on suitability of legislation type, hierarchy, and legal substance in Indonesia

Author(s): Sri Handayani,Tedi Sudrajat,Abdul Aziz Nasihuddin / Language(s): English Issue: 137/2017

Indonesia is a country which implemented local autonomy and have principle refers to the power of localities to legislate and regulate the behavior of residents. Based on that condition, local government has various policy matters which may cause problems in the formation of local regulation products. Until now, there are still uncertainty of standards and criteria on the establishment of Local Regulations and Local Head Regulations (governors, regents, mayors regulation) which may overlap one another and, as a result, finally revoked.This research paper is considered essential to conduct as there are numerous Local regulations with type, hierarchy, and legal substance which having technical characteristics and similarities with Local Head Regulations. In the other hand, many Local Head Regulations which should be organized in Local Regulations are somehow made in the form of Local Head Regulations.The merit of legislation principles based on law state is closely related with the formulation of local regulation products in the form of Local Regulations and Local Head Regulations. The authors discover a number of issues supporting the research objects, especially when creating the initiative Local Regulations.There were tendency of Council members to set up a technical issue in the form of Local Regulations in order that there would be no leeway to grant the authority to Local Head Regulations. Meanwhile, in other regions, there are a number of Local Head Regulations adopted into Local Regulations as their content materials are considered as the Local Regulations.

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Pojęcie „międzynarodowego wymiaru sprawiedliwości” na kanwie Hansa Kelsena projektu sądu światowego

Author(s): Tomasz Widłak / Language(s): Polish Issue: XXXV/2016

International courts and tribunals, due to their rapid development especially over the past three decades, are currently at the center of scientific debate led by the dogmatists of international law. The article argues that contemporary international courts and tribunals are currently subject to major changes, such as their significant multiplication, fragmentation, functionalism, and regionalism, as well as the expansion of the scope of their jurisdiction. The investigation of the thesis formulated by Hans Kelsen in the middle 1940s can be useful to assess whether these changes may contribute to the wider implementation of the function of international justice by international courts and tribunals. The Author isolated and presented the Hans Kelsen’s theory of the evolution of justice and his thesis on obligatory jurisdiction and the general nature of the scope of the jurisdiction of international courts and tribunals. Next, Kelsen’s proposals have been discussed in the critical context of allegations against international judiciary concerning the lack of legitimacy, democratic deficit and the lack of restraint in the exercise of judgments. In conclusion, the article affirms some of the changes in the contemporary model of international justice which in the light of Hans Kelsen’s thesis leads to the conclusion that international law is evolving towards the formation of sui generis international justice.

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Ideological, legal and empirical foundations of international investment law – a few observations

Author(s): Velimir Živković / Language(s): English Issue: 4/2016

There seems to be little doubt in both practice and doctrine that international investment law presents a regime striving for, if not already achieving, substantive multilateralism and uniformity of applied principles, rules and interpretations. This article, however, takes another look at what can be described as the foundations of such a regime – international investment agreements – and in particular ideological, legal and empirical issues surrounding them. A number of observations thus made significantly problematize the assertion that international investment law was indeed made and expected to become a multilateralized, uniform edifice in a substantive sense.

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Specyfika podmiotowości prawnej Stolicy Apostolskiej – zarys problematyki

Author(s): Magdalena Łągiewska / Language(s): Polish Issue: 1/2016

The Holy See (Sancta Sedes) is the specific subject of the international law. The acknowledgement of the legal subjectivity is related to the possession of the legal capacity and the capability of the legal international proceedings.The Holy See is treated as an autonomous subject which has its own rights and obligations concerning the international affairs. It has right to send and receive the minister residents (ius legationis), to enter into the international contracts(ius tractandi), to participate in the conferences and to be member of the inter-national organizations (ius foederum).

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THE 2005 HAGUE CHOICE OF COURT CONVENTION IN THE UNITED STATES

Author(s): Ronald A. Brand / Language(s): English Issue: 18/2016

The 2005 Hague Convention on Choice of Court Agreements was the result of more than a decade of negotiations at the Hague Conference on Private International Law. While the negotiations began with the goal of a more comprehensive convention, regulating both jurisdiction in the court of origin and recognition of the resulting judgment,the result is an important instrument. It provides the opportunity for predictability when a choice of court agreement is included in an international commercial contract, and places that choice on a more even plane with an arbitration agreement under the New York Convention.By giving effect in all Contracting States to both the choice of court agreement and the resulting judgment, the Hague Convention makes the choice between arbitration and litigation more evenly balanced for purposes of choosing a forum for dispute resolution in international commercial contracts.

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CHOICE OF COURT CONVENTION (HCCC) AND ARBITRATION

Author(s): Maja Stanivuković / Language(s): English Issue: 18/2016

This paper is about the relationship between the Hague Choice of Court Convention and Arbitration. In the first part the paper discusses the relationship of the HCCC and the New York Convention on Recognition and Enforcement of Foreign Arbitral Awards. In the second par tit examines the potential of the HCCC to create the level playing field on the dispute resolution market. In the third part it focuses on complex conflicts of jurisdiction between courts and arbitrators arising from the use of multiple remedies. The provisions of the HCCC are tested in light of double and triple choice of forum clauses occurring in practice at the stage of jurisdiction and at the stage of recognition and enforcement. The question of mergers of awards into judgments and their treatment under the HCCC is also briefly discussed. The paper concludes with the assessment that the HCCC does not offer a full answer to the question how to deal with complex conflicts among courts and arbitral tribunals. For this reason, it might bring some collateral uncertainty in the field of administration of international justice. The area that may be hit particularly hard by ratification of the HCCC by a State is its domes-tic arbitration.

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OPPOSIBILITY OF CHOICE-OF-COURT AGREEMENTS AGAINST THIRD PARTIES UNDER THE HAGUE CHOICE-OF-COURT CONVENTION AND BRUSSELS IBIS REGULATION

Author(s): Boriana Musseva / Language(s): English Issue: 18/2016

A choice-of-court agreement usually incorporated in a contract has an effect limited to the relations between the contractual parties. The rights and/or obligations under the contract and even the contract as a whole may be transferred to third parties. This could happen for example as a result of universal transfer of assets (successions, mergers and acquisitions of companies) or specific transfer of assets (assignment of receivables or debts, subrogation, stipulation in favour of a third party,transfer of contract); or, in case of multiple parties (e.g. articles of association). May the third parties find themselves involved in a choice-of-court agreement, or even in a proceeding which is already under way?This paper aims at answering this question using the Hague Convention of 30 June 2005 on Choice of Court Agreements (hereinafter the“Hague Convention”) entering into force on the 1st of October 2015 and the Regulation Brussels Ibis applicable since 10th of January 2015.

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Odstupanja od redovne primene kolizionih normi („korekcije“ kolizionih normi) – potreba za drugačijim stavom

Author(s): Vladimir Čolović / Language(s): Serbian Issue: 3/2009

The application of the choice of law rules depends on the consequences that it produces, as well as ways of applying these rules. Namely, there are situations when it is impossible to apply general rules about the choice of law rules. These are the situations related to the injury of domestic public order by applicable law, then the perception on the implementation of applicable law, as well as the fraud treatment in applying these norms. Of course, also, we have the problem with implementation of the choice of law rules in the changed circumstances. In all these situations it is a deviation from the regular application of the choice of law rules. Some authors classify the deviation in the institute “correcting of the choice of law rules” with which we could not agree, because it is different consequences of deviation, as well as the fact that only in one case we have the correcting of the choice of law rules. The application of the choice of law rules in such situations is very complex and that defines, also, the Act of Private International Law, whose provisions, relating to the above discrepancies, mostly on vague or incomplete way of regulating this matter. This paper analyzes the point of the theory and national legislation in this topic. In addition, the paper gives suggestions for future regulation of this area, which should contribute to the different attitude towards the implementation and the status of the choice of law rules in these cases.

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Features of Obligations Pertaining to Legal Services Delivery in the Light of Ukrainian Law and Practice

Author(s): Volodymyr Bogoslavets / Language(s): English Issue: 1/2015

The contractual obligation concerning provision of legal services, as civil obligation, possesses a number of specific features which distinguish it from similar obligations. Such features are: a particular object, subjective essence, subject matter and fiduciary nature of legal services provision. In addition, the legal relations of legal services provision, being similar to employer-employee contracts, work contracts, creative relations etc., correspond to the general rules of services, and therefore, there are no reasons to consider them as mixed obligations.

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Правна личност међународних организација у међународном праву

Author(s): Matej Savić / Language(s): Serbian Issue: 11/2016

In this paper, the author deals with issues of International Legal Personality of International Organizations, ie. Public International Organizations formed by states. Special emphasis is placed on the general definition of international personality and theoretical foundations of Legal Personality of International Organizations. The legal nature, factualy status and constitutive elements of International Organizations are elaborated in detail on the basis of which it was concluded that the International Organizations represent a specific Legal Personality in the International Legal Order, and which possess the ability to take on their own behalf the rights and obligations in International Legal Relations, ie. in (Public) International Law.

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A Proposal of Change in the Model of Police Education in Poland on the Basis of Experiences of Uniformed Agencies of Selected EU Member States. Outline Of Issues. Part I

Author(s): Jacek Dworzecki,Dominik Hryszkiewicz / Language(s): English Issue: 3/2017

The aim of the study is to present the existing solutions to the functioning of the police education systems in selected Member States of the European Union. Using the results of the study, the Authors presented the organization of police schools and universities in fifteen European countries. On the basis of the information obtained during the survey that was conducted across Europe the implementation of new organizational and legal solutions to the Polish police education system was proposed. The system of educating officers in Poland was presented in an institutional way, while the functioning of its leading component, i.e. the Police Academy in Szczytno, was described in detail. The material was divided into two parts because of its volume. The first part presents the organization and run of the research activity and ten police education systems in the Member States of the European Union were also characterised. Whereas the second part of the paper contains a continuation of the characteristics of the police education systems in Europe (the next four countries were discussed), and also highlights the functioning of the police education system in Poland, with particular reference to the Police Academy in Szczytno. This part of the study also includes proposals for changes to the Polish police education system. The paper was made in the framework of the project "Construction of an IT system supporting communication in the Police and other services subordinated to the Ministry of Internal Affairs in the aspect of internal security", project No. DOB-BIO7 /03/01/2015 of PLN 5 010 000 co-financed by the National Research and Development Centre under the competition No.7/2015 and No. 7/2015 for the execution and financing of research and development projects for national defence and security or research and development works for national defence and security.

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Upravni ugovori u zakonima o opštem upravnom postuku zemalja zapadnog Balkana

Author(s): Dejan Milenković / Language(s): Serbian Issue: 3/2017

Administrative contract, as well as specific legal institut, draws the attention of theoreticians of administrative law for more than a century. For them, it is that they are “formally” recognized by the courts, or in special substantive laws or Generally Administrative procedural Act (GAPA), we can find in almost all Euro-continental legal systems. In the former Yugoslav theory, in conjunction with the institute of administrative contracts are continuously guided serious discussions since the sixties of the 20th century. However, at several last years, we can see the intention and tendecy that the administrative contracts have to be generally defined by GAPA. Today, all countries of the Western Balkans, except Bosnia and Herzegovina, have in new GAPA a special section that regulates this institute and its specific legal regime. However, the ways in which they are formulated and regulated depend on specifics of the legal system in each of these countries. In this paper, we gave the comparative archive and analyze legal norms relating to administrative contracts in new GAPA in Croatia, Montenegro, Macedonia, Albania and Serbia, with basic similarities and differences in thair existing legal regimes.

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THE LEGALITY AND LEGAL EFFECT OF KOSOVO’S PURPORTED SECESSION AND ENSUING ACTS OF RECOGNITION

Author(s): John Cerone / Language(s): English Issue: 3/2008

International law has very little to say about the legality of secession. This neutrality derives largely from the principle of non-intervention. Thus, in general, the legally significant issue is the effect of the attempted secession; i.e. whether a new state has come into existence. The principle of territorial integrity operates only to impose a duty on states to refrain from acts that encroach upon another state’s territorial sovereignty, which of course would include an obligation to refrain from assisting separatist movements in their pursuit of secession. It does not bind these movements as such. The legality of recognition is analytically distinct from the question of the legality of secession, though the two are interrelated. Recognition of newly independent states is generally lawful, so long as that new state has effectively established its independence in fact. However, it is increasingly accepted that it is unlawful to recognize territorial sovereignty acquired through a violation of the prohibition on the use of force, or violation of another peremptory norm of international law. It would also be unlawful to recognize a state where the Security Council has decided, with reference to a particular situation, that states must refrain from recognizing that state.

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RECOGNITION OF KOSOVO INDEPENDENCE AS A VIOLATION OF INTERNATIONAL LAW

Author(s): Miloš Jovanović / Language(s): English Issue: 3/2008

Has International Law been violated by the states which recognized the independence of Kosovo? The raised question has resulted from the recent secession of Kosovo and Metohia. It is a starting point of the theoretical analysis of the problem of creation and recognition of states in international law. Contrary to the classical international law doctrine according to which the act of recognition is purely a political act and not subject to legal appreciation, the author demonstrates that an act of recognition of a state by another state can be considered in legal terms and possibly declared unlawful. This seems particularly true in the case of independence of Kosovo and Metohia since the UNSC Resolution 1244 protects the sovereignty and territorial integrity of the Republic of Serbia.

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ТУМАЧЕЊЕ МЕЂУНАРОДНИХ УГОВОРА

Author(s): Stevan Đorđević / Language(s): Serbian Issue: 3-4/2004

Two essential features emerge from the definition of interpreting legal acts in general and international conventions, in particular. The first is a free, intellectual act that is not subject to strict legal rules. Secondly, only the clauses of a convention that are not clear need interpretation, whether they are unclear, ambiguous, or polysemous. Interpretation is connected with the implementation of the convention, but also with the broader meaning of the notion of the convention as a whole. The sense and the significance of the interpretation of the convention lies in the fact that one does not go beyond what the contracting parties have decided. Seeing that international conventions are not concluded in empty space, but within a given international legal order, within which the contracting parties exist, attention will be paid to this background and foundation in the process of interpretation.

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КОДИФИКАЦИЈА ПРАВА МЕЂУНАРОДНИХ УГОВОРА

Author(s): Stevan Đorđević / Language(s): Serbian Issue: 2/2006

The notion of 'contract' in International Law denotes any agreement concluded between two or more subjects of International Law (States, international organizations, etc.) regulated by the rules of International Law. As a rule, it is concluded in written form, sometimes orally. Notion of 'contract' is usually understood to encompass 'intention to create rights and obligations' and 'certain legal effect'. However, some authors drop 'intent' from the notion, since it is already covered by the fact that it is 'regulated by international law'. This source of International Law has already been established for quite some time. Subject matter of the law of international contracts is mixed, since it touches upon international, as well as domestic law (competence to conclude international agreements, etc.).

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ГЛОБАЛНА АДМИНИСТРАТИВНА КРИЗА ПАТЕНТНОГ СИСТЕМА

Author(s): Slobodan Marković / Language(s): Serbian Issue: 2/2006

Examining the global patent system from the point of view of administrative bodies deciding on granting patents, the author points out at constant tension existing between the very complex patenting procedures and increase of filings of patent applications, on one hand, and limited institutional capacities of patent administrations, on the other hand. Following the review of major international agreements serving the purpose of rationalization of the procedure for obtaining a patent for the same invention in more than one state, the explanation has been given of mechanisms establishing the three patent administrations – European Patent Office, United States Patent and Trademark Office and Japan Patent Office (the so called Trilateral) as informal pillars of the global patent system.

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ПРОТИВТУЖБА И КОМПЕНЗАЦИОНИ ПРИГОВОР У АРБИТРАЖНОМ СПОРУ

Author(s): Vladimir Pavićević / Language(s): Serbian Issue: 2/2005

Until recently, admissability of counterclaims before international commercial arbitrations has been treated in accordance with a relatively simple forumula -- one had to ascertain the objective scope of the arbitration agreement. With regard to set-off, however, admissability threshold has been less clear and was mostly dependant on relation between the main claim and set-off. Newly promulgated Swiss Arbitration Rules have, for the first time, enabled potential broadening of arbitral jurisdiction over set-off claims, enabling Swiss tribunals to adjudicate even those set-offs that are already subject to another arbitration clause or forum selection clause. This might lead to a potentially dangerous situation where such attraction of jurisdiction might lead to a conflict with another tribunal or court which has expressly been designated as competent with regard to relations which give rise to set-off. This triggers later dilemmas with regard to the reach of decisions on set-off and the possibility that the tribunal applies lis pendens rules in order to avoid conflicting decisions.

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LAWFARE: THE USE OF THE LAW AS A WEAPON OF WAR

Author(s): Alexandra Mălina Mânea / Language(s): English Issue: IX/2010

Undoubtedly, terrorism represents a current, challenging and dynamic phenomenon and issue of our times. Terrorist are constantly engaged in a learning process, not only preparing new and more dangerous tactics and approaches, but also working to understand the counter-measures designed against them. By anticipating such meaures, terrorists are able to surprise their enemies time after time. It is thus the responsability of experts from every branch and discipline of the field – academia, law enforcement, intelligence community, military and diplomatic circles – to be at least as innovative as the forces they seek to defeat. One of the last complementary tactic to terrorism and asymmetric warfare is the wrongful manipulation of the law and legal systems in order to achieve strategic political or military ends. As a legal concept, terrorism strikes not only at the political power of states or at the safety of individual citizens, but at the law's own stability as law.

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