Přehled aktuální judikatury II/2021
Short summaries of current case law in the field of ICT law.
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Short summaries of current case law in the field of ICT law.
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Organizational conflict as is considered legitimate and inevitable and may constitute a positive indicator of effective organizational management. This paper aims to analyse the legal provisions which establish the alternative dispute resolution methods and procedures regarding the individual labour conflicts through conciliation and mediation.
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The security exception enacted in Art. XXI of the General Agreement on Tariffs and Trade has been contentious over the years. Parties have either argued that the security exception has a completely ‘self-judging’ nature, or that it allowed for a limited review by the panels and the Appellate Body, in accordance with the ‘good-faith’ principle. At first, states were reluctant to rely on the security exception provided by the General Agreement on Tariffs and Trade, or to refer the matter to the WTO dispute resolution system when other states relied on it. Even when panels were established under the General Agreement on Tariffs and Trade 1947 in respect to a dispute relating to the security exception, they usually had to act upon a limited mandate which hindered their possibility to examine the scope and limits of the exception. The debate over the extent of the ‘self-judging’ nature of the security exception lasted for more than seventy years, and it finally ended with the ruling in Russia — Measures Concerning Traffic in Transit. In this case, the panel asserted the jurisdiction over the security matters of states and provided a ‘roadmap’ to be followed in future examinations. The legal test devised by the panel consists of two parts. The first part is an objective assessment of whether there is a ‘war’ or an ‘emergency in international relations’ and whether the measures were taken during such state of affairs, according to subparagraph (iii) of Art. XXI of General Agreement on Tariffs and Trade. The second part consists of a two-prongs ‘subjective test.’ It involves a deferential review of the veracity of the state`s security interests and of the necessity of the measures adopted by the invoking state. In doing so, the panel will use a ‘sliding-scale’ test, which enables it to modify the degree of scrutiny based on the gravity of the ‘emergency.’
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The purpose of this paper is to show modus operandi of money laundering used in Bosnia and Herzegovina and in other parts of the world. From these examples, we can recognize the sectors and intermediaries through which the money is laundered, although the full scale of actual methods, intermediaries, and countries remain unknown. The techniques of money laundering are constantly changing, due to the fact that criminals use different ways to hide the illegal origin of the money, using the weaknesses of certain sectors within different countries. Additionally, what makes it even more difficult is the fact that money laundering as an activity is constantly evolving, while those laundering the money keep discovering new ways to avoid, not only the activities of law enforcement agencies in charge of money laundering prevention and investigation, but also the unison legislative and regulatory approach of governments and international community in prevention and investigation of money laundering.
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Disputes settlement arising from transactions with private-elements is complex issue that is particularly concerned with the theory of Private International Law. In addition to the conflict of laws, transactions with foreign element inevitably lead to conflicts of jurisdiction of the courts of various states in the settlement of disputes (conflict of jurisdictions). One of the basic principles of international relations is the principle of national sovereignty. Accordingly,each sovereign state could subjected to competencies of their bodies any cases before them, including those that are factually related to foreign countries. In doing so, the character and factual connections with foreign sovereignty are not essential. Such a concept of jurisdiction, states generally do not practice. For international business transactions, the way of resolving disputes is very important. Arbitration to settle disputes is one of the specificities of modern private legal relations with a foreign element. They are often used in practice. As an alternative means of dispute resolution in practice, arbitration is proved to be more efficient for the parties to the dispute, and this method of dispute resolution in contemporary private transactions are increasingly used in our legal system.
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Corruption is a universal social phenomenon, because it is present in all countries, in all systems and all states are working to prevent and control it. Corruption still remains the biggest obstacle to the efficient functioning of a modern state. In the Republic of Serbia, corruption is not only present in all spheres of social life, it is also very widespread, that why it is among the countries with high level of corruption. They are very numerous and diverse etiological and phenomenological aspects of its manifestation. Privatization of state-owned companies in Serbia after the year 2000th has contributed to the expansion of specific instances of corruption. They came to the fore a number of negative effects of privatization, which will in this paper be discussed.
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In the public and private sectors, can be indicated numerous problems and opportunities referring to various abuses, including: public spending of budget funds of state institutions (with a tendency of budget overflow through public-private partnerships or concessions in the private sector), budget spending (public procurement) in a transparent manner but with selectivity and various privileges. The public sector has an important role in the modern society. There are several important factors that affect its functioning, including a completely decentralized management of public assets. The centralized management system of public assets permits too high concentration of power among individuals, so authorized persons undertake the obligation on behalf of the institution. Also, the lack of relevant guarantees for the consistent implementation of operating procedures creates legal and factual uncertainty, not only for the citizens, but also for employees in the public administration. It is important to add that a numerous public administration institutions do not have a proper established system of risk assessment point, in terms of subjection to corruption, which directly affects the capacity and effectiveness of control mechanisms in preventing and detecting the corruption, which is a major handicap in their work.In the private sector there are areas in which the corruption preventive tools are poorly developed such as the insufficient information about the law on protection of competition, the capacity of the Commission for protection of competition law to implement the law, as well as the lack of transparency of sponsorship, behind which hides the possibility of corruption, abuses, public procurement, etc..
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Part two of the article analyses based on two possible scenarios whether United States was indeed right to rely on the security exception of Article XXI, by using the ‘roadmap’ provided by the panel in the Russia — Measures Concerning Traffic in Transit case. In the first scenario, I envisaged that United States could easily rely on the argument that the armed conflicts it is currently involved in, amounts to a ‘emergency in international relations.’ The advantage of this line of argument is that the emergency represents a ‘war’ or ‘armed conflict’ and the ‘sliding-scale’ test would lean in United States` favour. The disadvantage is that the United States` claimed ‘security interests’ do not emerge out of the ‘emergency in international relations’, as it would be necessary to pass the subjective test. In the second examined scenario, I analysed the possibility of the United States to argue that there is an economic war with China, that should be deemed as an ‘emergency in international relations.’ The advantage of this argument is that the two investigation reports made by the Department of Commerce of the United States in respect to the steel and aluminium imports identify China`s production practice as being related to United States` industry decline. Therefore, there is a sufficient link between the ‘emergency in international relations’ and the ‘security interests’ of the United States. However, as I found out, the reasons provided by the United States are mostly economic in nature and with no substantial impact on its security interests. Therefore, using the test developed in Russia — Measures Concerning Traffic in Transit, the article concludes that a panel would most likely find that the measures undertaken by United States cannot be justified under Art. XXI of the General Agreement on Tariffs and Trade. The legal test represents a solid framework for further developments, that will allow other panels to engineer future mechanism which will enhance their scrutiny prerogatives. In this regard, I proposed a series of adjustments to the legal test, that would make it more flexible such as to accommodate new security threats and maintain the necessary deferential approach. The test would enable a panel to closely scrutinize cases where there are traces of abuses, while allowing a large discretion for states to adopt less restrictive measures. Through its flexibility, the test will allow the states to rely more frequently on the security exception, implicitly recognising the de facto loss of the latter’s exceptional character. The upcoming challenges for the panel`s test will be to withstand over time, in face of the pressure the Appellate Body is submitted to, as well as to cope with the new security threats, such as cybersecurity and climate change. In my view, the test is sufficiently adaptable to accommodate such new threats.
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The company law in Europe continues showing a difference of opinions in relation to the transfer of a company seat from one system to other, affecting the well functioning of the Single Market and the principle of freedom of establishment provided by the Treaty, no matter the way those organisations want to move, the Court of Justice being the only one offering, in time, clarifications and decisive solutions, many of them limiting the member states’s action in restraining the freedom of establishment of companies. As a consequence, the caselaw on transfer of seat of companies from one member state to another, rather timid at the beginning, but approaching a more bold attitude recently, become more favourable towards the acceptance of the freedom of establishment in most cases of transfer, the national company law, especially the provisions on conflict of law, facing a new challenge in the harmonisation of the provisions related to incorporation, functioning, merger/division/conversion or the creation of secondary establishments. Moreover, the development of the market, leaning towards a speedy digitalisation, forces both the institutions and the members states to take measures to solve the problem of transfer of seat of companies in a more integrated market and one of the steps made in this way was the adoption of the Company Law Package, by which the European Union addressed two crucial issues: the use of digital tools by the companies and the crossborder conversions, mergers and divisions. The article follows the main developments of the treaty provisions and caselaw in relation to freedom of establishment and transfer seat of companies, especially the pivotal decisions of the Court of Justice which made possible for the new attitude in the field and analyses the possible structural implications of the new provisions on cross-board conversions .
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Public administration could play a critical role in ensuring a fair and effective functioning of the capital markets. Promoting a vibrant and sustainable financial market warrants a delicate balance between the administrative powers and the rights and interests of the involved stakeholders. The present paper examines the structure and powers of specific administrative mechanisms in HKSAR to assess the scope and limitations of public administration in influencing the functioning of the capital markets. The paper investigates how the instrument of judicial review in HKSAR has sought to serve as a check and balance of the powers conferred upon the administrative mechanisms and other relevant rights and interests. The paper concludes with an analysis of the critical features of the regulatory, administrative and judicial mechanism in HKSAR to determine whether public administrative instruments and bodies have a positive role to play in enhancing the attractiveness and the confidence in capital markets for local, regional and international stakeholders.
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This research focuses on plunder from variuos co-operative or state institutions (mostly those which had belonged to the Ministry of Internal Trading or the Unity of Co-operatives of Lithuanian SSR) in the first post-war years (1945–1947) in the Lithuanian SSR. The primary source for this article is comprised by 54 criminal cases from the archive of the Supreme Court of the Lithuanian SSR. Cases used in this study were chosen based on one important criteria: that there were not only acts of plunder but also the realization of stolen goods. This would most likely be achieved by selling the goods through various marketplaces (looking from the Soviet point of view, the plundered items belonged to the black market anyway – even if the market activities were not forbidden). Also, the practices of punishment applied in the cases of plunderers and speculators are analyzed. The research shows that even in the very first years of the post-war period, illegal economic processes were widespread in Soviet Lithuania. Plunderers were hitting the Soviet economy hard – despite the harsh practice of punishment, the Soviet government would lose tens of millions of rubles in the Lithuanian SSR each year.
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The obligation to carry out a creditworthiness assessment set out in Article 70 § 1 of the Banking Law is usually considered a norm of public law significance which does not affect the private law sphere of a credit agreement. However, this view is based on an idealized assumption that loan agreements are neutral towards the borrower’s risk, which does not correspond to the conditions of the contemporary economy. Practical experience shows that creditworthiness, and consequently also creditworthiness assessment, may also depend on the structure of an adhesive loan agreement. In such cases, the erroneous message about the existence of creditworthiness becomes a form of pre-contractual information, which implies not only the public law liability of the bank, but also judicial interference in the sphere of relations between the parties of the agreement. Change in the interpretation of Article 70 § 1 of the Banking Law, which allows its informative function and private law sanctions for violating its disposition, is justified by developments in European Law and has already been initiated in the jurisprudence of the Supreme Court and Courts of Appeal.
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The purpose of the article is to outline the general characteristics of agreements on financial collateral and reconstruction, by focusing on statutory financial collateral arrangements based on the transfer of rights to the creditor’s property. The structure of these securities takes into account the specificity of financial market transactions but also expresses certain universal features of this type of security. The analysis of these features may be helpful in contractual practice and in the construction of a normative model of security for the needs of general trade. The characteristics of fiduciary securities are a controversial issue and their admissibility is criticized. The above-mentioned arrangements, while implementing the objectives of the Directive, force a change in approach, at least in relation to financial collateral based on the transfer of rights.
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Following an indolent harmonization process in the area of direct taxation, the Court of Justice of the European Union (CJEU) largely undertook the mission to evaluate the compliance of national legislation with the principles of the Internal Market. In this process of negative integration, Member States have increasingly introduced novel justifications meant to counterbalance the application of the fundamental freedoms enshrined in the founding Treaties. This paper mainly focuses on Court of Justice’s rulings where various tax-specific justifications were employed under the “public interest” umbrella. Under the Court’s expansive and hesitant approaches, lies a large network of interrelated arguments, ranging from the need to preserve a coherent tax system to the imperative of preventing tax avoidance. The aim of this paper is to provide a contextual account of these justifications and comment on the suitability of their future usage.
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In the current conditions of socio-political development of Ukraine, the consideration of social rights, their "capabilities" and guarantees, should primarily take place in the context of those threats and challenges that directly affect their provision and implementation. In modern Ukraine, in the period of development of the legal framework of state and public life, the problem of the effectiveness of legislation is acute. Ensuring and respecting social rights must be reflected in the implementation of social policy by the state. Among the problems that are the subject of interference in the content of social policy is the low standard of living. The study investigates the concept of "social policy", its main purpose. The legal framework that regulates issues related to the effectiveness of social policy implementation has been identified. According to the analysis, the main problems of imperfection of social policy are insufficient wages. Accordingly, ways to improve social policy in order to ensure a minimum and sufficient standard of living are considered in detail. The practical significance of the study is that it has developed five main areas for improving the content of social policy in order to preserve and respect the social rights of citizens to health, work, leisure, etc.
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Algorithmic trading and high-frequency trading have developed extensively in the last years, becoming the major trading techniques on the financial instruments markets. These technologies offer both benefits and risks for global markets. Through our study, we will identify the risks associated with these technologies. Then, we will critically analyze the regulation framework in the European Union and in Romania, concluding on the level of efficiency in tackling the associated risks.
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This article analyses two procedural measures having a suspensive effect that may be ordered in the context of cumulative tax and criminal proceedings, namely suspending the resolution of the administrative tax appeal following a criminal referral and suspending the trial in the event of initiating the criminal prosecution phase. Considering the significance of such measures to safeguard the right to a fair trial and the ne bis in idem right, the application thereof should consider the conditions ensuring their lawfulness, as reflected both under the national and the European legislation, the criteria to assess their appropriateness by reference to the circumstances of the case, and their duration, which must be kept within reasonable limits.
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The terms bankruptcy and insolvency are construed in different ways, which has resulted in the emergence of discrepancies in their definitions. There is a noticeable division among researchers in terms of the referents of the concepts of bankruptcy and insolvency. Varying definitions of bankruptcy and insolvency are employed, depending on whether the perspective of the legal sphere or the economic sphere is adopted. In the article, the authors attempt to define these concepts and define the relations that exist between them. The aim is to show that the legal understanding of the terms bankruptcy and insolvency is subordinate to their meaning in the economic sciences. Due to the subject under analysis and the nature of the sources, this article employs the qualitative method, based on interpretative research. The interpretative research was conducted with the use of ethnographic research strategies based on legal acts and the achievements of the doctrine and judicature. The conducted research has shown that as a result of the development of bankruptcy law, the legal understanding of the concept of bankruptcy and insolvency has been subordinated to the meaning given to this concept in the economic sciences. This allows for the use of economic tools and dynamic interpretation, so that the decisions of bankruptcy courts are in line with the dynamically changing socio-economic reality.
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This article addresses the issue of assessing the legal nature of various activities performed by musicians: participation in symphonic concerts, orchestra rehearsals and sectional rehearsals, as well as remaining in compulsory standby to replace another musician during a concert or rehearsal. A number of doubts concerning this issue emerged, which resulted in unstable interpretation of the provisions of the Copyright and Related Rights Act (in particular with regard to interpretation of the term “artistic performance”). Divergences in interpretations affected not only the civil law assessment of the presented issue, but also public law aspects (including the tax law assessment as to the possibility to apply increased, 50%, tax deductible costs). The research objective of this paper is to identify the framework of the disputed area resulting in discrepancies in interpretation and to present possibilities (and methods) of eliminating the interpretation dilemmas that have arisen. This concerns both irregularities in the interpretation of the provisions relating to the type (and results) of professional activity of classical musicians from the point of view of copyright protection and the subsequent tax-law assessment. The article uses the dogmatic-legal method.
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The article constitutes a comparative legal study of mediation based on for procedural regulations, i.e. Act of 6 June 1997: Code of Criminal Procedure, Act of 17 November 1964: Code of Civil Procedure, Act of 14 June 1960: Code of Administrative Procedure, and Act of 30 August 2002: Law on the Proceedings before Administrative Courts carried out with the use of a dogmatic method. The author analyses the solutions that, in his opinion, make it possible to propose a thesis on far-reaching convergence of the basic, and at the same time of normative provenance, principles of mediation. The principles include amicability, voluntariness (optionality), commonness, loyalty to parties, confidentiality and non-openness of mediation, as well as a mediator’s impartiality. The above-mentioned convergence does not mean complete homogeneity of particular solutions or their non-defectiveness, which is exemplified by Article 2591 CPC and Article 83 § 4 CAP. It is also shown that the domestic solutions are in conformity with the solutions recommended by the Committee of Ministers of the Council of Europe.
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