Je suis Charlie? Regândirea libertăţii în Europa multiculturală [Je suis Charlie? Rethinking freedom in a multicultural Europe], Iaşi, Adenium, 2015, 358 pages
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Keywords: malpractice; antisocial activity; employee; protection of a whistleblower of a serious antisocial activity; report;
Corrupt behaviour is a common practice with negative effects on the whole of society. For instance, if a company wins a public procurement contract in an unfair way, it enriches itself not only at the expense of competition, but also at the expense of the whole of society, as the best applicant has not necessarily been selected within such a procurement. The same applies in the case of a supplier launching an unsafe product onto the market, threatening the health of everyone who buys it. In order to prevent such malpractice and eliminate their negative effects, the cooperation of persons aware of such behaviours is necessary. In order to ensure such cooperation, however, the existence of instruments protecting whistle-blowers against various sanctions (especially by employers) is necessary. As Slovak legislation did not include a regulation of procedures for reporting malpractice and protecting whistle-blowers, a new law aimed at solving such issues was enacted in October, 2014. The given legal regulation took effect on January 1, 2015. This paper endeavours to provide basic knowledge of the environment that the given regulation entered, as well as information on the possibilities of individuals to protect social interests on its grounds.
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Keywords: Business Judgement Rule; directors' liability; fiduciary duties; duty of care; Abstention Doctrine;
The business judgment rule represents a central doctrine of corporate governance,due to its major implications on corporate directors' liability and to its infl uence on therelationship between shareholders and the board of directors. The interpretation of theRule as a behavioral standard or as an „abstention doctrine” can determinatively influencethe liability proceedings against directors who acted in consideration of their fiduciaryduties. This paper aims at analyzing the national legal provisions of the BusinessJudgement Rule and the compatibility of the legal provisions with the establishedinterpretations of the Rule that can be found in the foreign literature. Absent a case lawthat clarifies de approaches of the Business Judgement Rule by the national courts, theresearch analyzes the traditional Common Law approaches of the Rule and the obstacleswhich hinder a faithful transfer of the Rule in Romania. The objective of theseidentifications is to draw de lege ferenda proposals for an efficient application of the legalprovisions in the future. Considering that this Rule is the natural consequence of trust andof the powers granted to corporate directors, the conclusions of the research suggestsolutions for the stabilization of the continuous tension of the supreme values of thecorporate world: authority and liability.
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Keywords: State aid procedures; third party; Procedural Regulation; State aid reforms;
Despite the important role in increasing efficiency of the State aid control and in revealing the existence of State aid, third parties in EU State aid procedures are considered merely as a “source of information”. This article provides a critical analysis of the reforms of State aid procedures from a third party perspective. The reforms are disappointing maintaining the bilateral character of State aid procedures between two main parties the Commission and the Member States concerned and leaving third parties with very limited procedural rights. In addition the hard-law reform of the State aid procedures of 2013 increases the procedural duties of third parties without procedural guarantees and extends the investigatory powers of the Commission.
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Keywords: privatization; public private partnership; Tanzania Breweries Ltd.; the World Bank;
The policies of International Monetary Fund (IMF) and the World Bank (WB) have made significant impact in most developing countries, particularly in South of the Sahara. Foreign direct investment (FDI) is one of the policies spearheaded by these institutions. Countries like Tanzania, Uganda and Kenya, have experienced a wave of economic reforms in recent years. These reforms, to a larger extent, which have been inspired by International Institutions, have recently faced with a magnitude of concerns which is expressed in terms of whether the right kind of pre-conditions exists for these measures since some of the measures don’t produce the desired outcomes in some developing countries. The thrust of the evaluation has been on whether privatization through Public Private Partnership presents a profitable policy in Tanzania. In other words, if there is any evidence of significant performance of State Operated Enterprises after privatization. This research takes stock of the evidence in pre and post three privatized companies and shows that in competitive environment privatization has been a resounding success in improving performance of public enterprises.
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Keywords: right to the protection of personal data; right to information; review of constitutionality; proportionality; Privacy
The legal regime of the right to the protection of personal data is of particular concern in the context of the technological developments that have as a consequence the increased collection and exchange of such data. Information technology and its development constitute forms of evolution of society, but this evolution must take place within the limits of and with respect for fundamental rights as regulated by States’Constitutions and the relevant international documents. Having regard to the dynamics of these phenomena, timely and continuous adaptation of the legislation is undoubtedly difficult. As a result, an important role in the definition and guarantee of the right to the protection of personal data and the reconciliation with other fundamental rights that also need to be protected is played by national courts (particularly the constitutional courts)and international courts, obliged to carry out an evolutionary and at the same time consistent approach in this matter. The judges’ dialogue is thus the key to ensuring an effective protection of fundamental rights that need to be reconciled.
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Keywords: Directive 2001/23/CE; Portuguese Labour Law; transfer of undertaking
The undertaking, business, or part of an undertaking or business can be transferred to another person or corporation as a result of a merger or a legal transfer,transitory or definitive. As a consequence of the transfer, there is subrogation ex lege of the transferee in the rights and obligations arising from the employment relationship existing on the date of a transfer. This issue is of the utmost importance to accomplish the freedom of the employer negotiate the undertaking and the protection of employees' rights as well.The Portuguese legal framework has been shaped by Directive 77/187/ CEE and subsequently by Directive 2001/23/CE. In this paper, in order to assess the compliance of the legal framework concerning the enshrined in Labor Code with the Directive 2001/23/CE, it will be performed a comparative analysis between both regulations, which will be coordinated with the case law from the Court of Justice and Portuguese Courts. We will conclude that, apart from some issues, the Portuguese labour law regarding the safeguarding of employees' rights in the event of the transfer of an undertaking complies with the Directive 2001/23 /CE and the case law from the Court of Justice.
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Keywords: arbitration; appointment; criteria of selection; party autonomy; independence and impartiality
Maybe in all situations the most important factor is the decision making person. In arbitration this person is the arbitrator. Knowing how to choose your arbitrator is the first step in knowing how to win your case. There are some important criteria that needs to be taken into account when appointing an arbitrator, like the independence and impartiality of the arbitrator, the experience in similar cases, knowledge of the system of law applicable to the contract and other backgrounds. Another important aspect is the number of arbitrators and the advantages and disadvantages of having one, three or more arbitrators. All those issues are very important when drafting the arbitration agreement and in matters of complex contracts it is of high importance to have legal advisors that will help you draft an agreement that will minimize risks and favor efficient arbitral proceedings.
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Keywords: legal positivism; scientific positivism; communication patterns; legal communication;
This article tackles some aspects concerning the role of law as an instrument of communication from the perspective of legal positivism. The paper presents considerations regarding law communication in relation to legal positivism and scientific positivism. At the same time, the article examines the correlations between the legal communication models and the various inclinations developed under legal positivism. Both within legal positivism and the scientific positivism, the role of law as a communication tool is essential. The concept of legal communication should be considered as the idea of understanding the legal norm by the recipients of law, namely by persons and also acceptance of these rules in order to respect them. Also, clarity and transparency in law communication are very important elements that contribute to the way in which legal standards are received. The analysis of legal communication from the perspective of legal positivism presents a special scientific interest, given the very essence of positivism, namely that the laws are commands of the human being. Thus, it is important to analyze communication patterns that can be applied in the positivist orientation to consistently appreciate the ways in which legal communication can be improved.
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Keywords: business law; OHADA; trading companies; status of married people
Taking into account the status of spouses by business law of the Organization for the Harmonization of African Business Law (OHADA) is referring to general commercial law and company law. The OHADA legislator values the status of spouses devoting equality between spouses, through the possibility for them to be able to be involved in low risk companies; the recognition of the de facto company between them and the right granted to each power, under the same conditions, benefit from the commercial lease originally attached to privileges. The consideration that the OHADA law grants the quality of husband appears in heritage protection thereof, insofar as it puts it away in case of depletion bad deal made by one of them . This is why the prohibition for spouses to be involved in the unlimited risk firms and the requirement of a separate trade as a condition for the spouse of the trader can also acquire the same status. But the heritage protection system spouse taken from the OHADA business law is supplemented by certain mechanisms of civil law, including matrimonial property regimes, although not all have the same efficiency. Indeed, among the two groups of matrimonial property regimes are known as separation schemes and those of the community property, only the first effectively protect the couple's assets. This objective likely was not assigned to the second from the design. These look more forward the merger of most of the assets of the couple without the slightest idea of calculation.
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Keywords: companies' governance; trade law; shareholders; the separation of powers principle
Companies participate at the civil circuit by concluding legal documents. According to the principle regarding the separation of powers in the company's governance, a distinction must be made between the duties of the company's shareholders general assembly and the duties of the administrator. Thus, shareholders general assembly holds the deliberative power of the company and determines the working strategy of the company, whereas the administrator expresses, executes the will of the shareholders general assembly and concludes legal documents in the name and on the behalf of the company. Such legal documents are considered the documents of the company itself. From the perspective of the two management bodies, we can ask ourselves what is the applicable sanction when the shareholders general assembly decides to nominate a third person to represent the company for the signing of a legal document? From a certain point of view this represents an extension of the legal powers, throughout the legal documents of the company's bodies (including the shareholders general assembly's resolutions) and a breach of the exclusive duties of the administrative bodies of a company. The applicable sanction regarding such legal documents is non-existence of legal acts.
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Keywords: collective proceedings; Self-referral; fair trial; right to an impartial court, the rights of defense
The law of collective proceedings for clearing off depts which replaces the former bankruptcy law pursues an economic objective the reason why it carries certain exceptions to the common procedure law. As such, the judge of collective proceedings has powers ofinitiative in the institution and conduct of the trial. He can thus of his own initiative open the collective proceeding. The aim of this study is to confront the judge's office powers with the cardinal principles of the trial. The expected result should help verify the compatibility of those powers with the requirements of a fair trial. A hypothesis emerges that automatically powers that deviate some what to the cardinal principles of the trial, are justified by the aim of safe guarding collective interests pursued by the insolvency judge.
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Keywords: European Union; administrative law; public policy; EU law
Over the years there have been a lot of debates at academic and doctrinal level regarding the EU rules of public policy. Are these rules to be found in the Treaties or in secondary legislation? Which EU legal rules shall be considered as being rules of public policy? Which EU values are they protecting? These are some of the questions that thepresent study tries to answer starting with the definition of EU public policy rules and analyzing then its content and its role within EU legal system.
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Keywords: State; State power; public functions; separation of powers
The State is a complex concept that can be addressed from a legal, political, social and economic perspective. The paper explores the meanings of the concept of State, State elements and stresses that the State power is one and indivisible and it is exercised through three functions and not to separate powers, namely the legislative function, executive function and the judicial function. The State institutions through which the three functions are controlled each other and collaborate to achieve the needs of society, which is likely to prevent abuses against citizens.
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Keywords: implied terms; civil law; common law; principles of contract interpretation
This study analyses the matter of implied terms from the point of view of both English and Romanian law. First, the introductory section provides a brief overview of implied terms, by defining this class of contractual clauses and by providing their general features. Second, the English law position is analysed, where it is generally recognised that a term may be implied in one of three manners, which are described in turn. An emphasis is made on the Privy Council’s decision in Attorney General of Belize v Belize Telecom Ltd and its impact. Third, the Romanian law position is described, the starting point of the discussion being represented by the provisions of Article 1272 of the 2009 Civil Code. Fourth, the study ends by mentioning some points of comparison between the two legal systems in what concerns the approach towards implied terms.
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Keywords: Media; Crisis; Transformation; Democracy; Discourse.
The media in Western (and Eastern) Europe are in a serious crisis. The gap between published and public opinion is steadily widening. The crisis of Romanian transformation policy and political communication is reflected in a media crisis and more generally in a crisis of trust in political institutions. The disappointment with sluggish political and social change is growing. The article describes the political, social, cultural and intellectual background and the problems of the present Romanian political and public discourse. The main reason why since the end of communist dictatorship no fundamental change towards an open and “impartial discourse” could be achieved is seen in the persisting deficits of democratic transformation and political communication.
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Keywords: political culture; secularization; civil society; political mythology; uncertainty; totalitarianism.
This article focuses on the roots of political culture in Romania, beginning with the consolidation of the independent state, continuing through the experience of totalitarianism and the transformation process after the fall of comunism. Many of the political dificulties of Romanian society today can be traced back to specific experiences (or missing experiences) in the recent history. The lack of trust in political institutions and in the state, the underdeveloped civil society, the power of the church and the generalized corruption all find their explanation in specific structural settings of the past, from imported constitutions, through partial secularization, political myths and strong networks of former communist leaders. The only hope for the political recovery of the country is the strong presence of the EU, with its regulatory function.
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Keywords: political communication; legitimacy; politics; actors; message; receiver.
The government programme of the government which started its mandate after the 2012 parliamentary election entailed a regionalisation and decentralisation reform, which was supposed to be a very large reform for Romania. However, the reform remained stuck in the communication process. This paper looks into whether the Romanian political actors pursued a double strategy by presenting different aspects of the reform to different actors. The first part of the paper entails a theoretical perspective on the political communication and the analysis frame. The second part presents the analysis that considers the following elements: the context of the reform, the pursued goals of the Romanian political actors and the receiver-actors towards who the communication took place. Therefore, the paper explains the communication that took place with regard to the proposed regionalisation reform from 2013, which has been further postponed.
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Keywords: media of collective memory; CNSAS; political communication; negotiation of the communist past; cultural remembrance.
Romania lags behind other Central and Eastern European countries in dealing with the communist dictatorship. The political continuity after 1989 prevented any negotiation of the past, leading to a „bottom-up“ understanding based on myths and fictionalized narratives, which often increased conflicts between the civil society and the political elites. These aspects are still considered to be a flaw in terms of political culture. This paper argues about the emergence of different types of media and institutions of collective memory – with focus on the National Council for the Study of the Securitate Archives (CNSAS) - about the way they challenge the negotiation of the communist past, their reception by the public as well as about their influence on political discourses.
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Keywords: Public sphere; Communication; Propaganda; Communism; Romania.
The present work deals with the research of the issues of political communication in Romania. This paper increase the visibility of the issues of the missing or unevolved sphere of “political Public” in Romania and aims to raise awareness about how the public sphere was dissolved by the communist regime and his installation of ”propagandistic public”. Afterwards were the deriving problems from it for the political communication in Romanian post-communism examined.
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