Штучний інтелект для прийняття судових рішень: деякі потенційні ризики

Author(s): Yu. S. Razmetaeva / Language(s): Ukrainian Issue: Special/2024

The relevance of the research topic is due to the rapid and inevitable deployment of artificial intelligence technologies in most legal systems, which includes its application in the decision-making process. The purpose of the article is to, after analyzing the use of artificial intelligence in judicial decision-making, to single out implicit potential risks of algorithmization and to propose a reasonable approach to the implementation of those technologies. The research uses such methods of scientific knowledge as structural analysis, imaginary experiment and legal doctrinal approach, as well as "case study" elements. The article explores the issue of implementing artificial intelligence in judicial decision-making, accentuating potential risks and challenges. It highlights the need to consider justice, fairness and the rule of law when applying AI, and provides arguments for a reasonable and limited algorithmization. The article focuses on the problems of algorithmizing complex judicial processes, particularly regarding the selection of legal principles and AI’s potential negative impact on the individualized nature of justice. Among the risks, the tendency of AI towards rationalization and standardization of decisions, its limited ability to interpret human characteristics and case circumstances, and the substitution of legal certainty with algorithmic predictability are emphasized. The article also discusses the difficulties related to the understanding and interpretation of legal texts by algorithms,noting that AI is incapable of thinking and making moral judgment. Special attention is given to the issue of legal reasoning: the article argues that court decisions must not only be justified but also convincing to society, which is impossible to achieve with AI due to its incapability to comprehend discourse and case context. Based on the conducted research the article concludes that despite technological advances, the complete replacement of human judgment with AI carries risks and may lead to a distortion of the very concept of justice and its devaluation. Prospects for further research may include understanding how technological determinism and pure utilitarianism override more cautious and moderate approaches and relegate deontological considerations to the background

Explicitarea pretențiilor în apel. Semnificație

Author(s): Viorel Terzea / Language(s): Romanian Issue: 02/2025

The section contains a selection of the most important decisions from the Romanian Courts. The decisions are selected and commented by authors. The emphasis of this section resides in the ability of each author to comment upon a relevant case law and to comment upon the legal issue brought by the court. The decisions are summarized and grouped by law subjects. The decisions present the situation in question, the procedures, the arguments brought by the parties, and the pronounced solutions. Each decision contains a short commentary relating to the legal issue analyzed by the court.

Cerere de sesizare a CJUE vizând Regulamentul (CE) nr. 805/2004 al Parlamentului European și al Consiliului din 21.04.2004 respinsă ca inadmisibilă. Calitate procesuală pasivă a sucursalei unei bănci din străinătate înregistrate la BNR

Author(s): Ana-Maria Nicolcescu / Language(s): Romanian Issue: 02/2025

The section contains a selection of the most important decisions from the Romanian Courts. The decisions are selected and commented by authors. The emphasis of this section resides in the ability of each author to comment upon a relevant case-law and to comment upon the legal issue brought by the court. The decisions are summarized and grouped by law subjects. The decisions present the situation in question, the procedures, the arguments brought by the parties and the pronounced solutions. Each decision contains a short commentary relating to the legal issue analyzed by the court.

Wyrok Sądu Okręgowego w Koszalinie z dnia 10 grudnia 2021 roku (V Ka 556/21)

Author(s): Not Specified Author / Language(s): Polish Issue: 50 (4)/2024

Wyrok Sądu Okręgowego w Koszalinie z dnia 10 grudnia 2021 roku (V Ka 566/21)

Author(s): Not Specified Author / Language(s): Polish Issue: 50 (4)/2024

ARBITRABILITY OF CONCESSION DISPUTES IN SLOVENIA

Author(s): Nastja Merlak,Nejc Humar / Language(s): English Issue: 4/2024

A fundamental question at the beginning of any arbitration is whether any public policy rules prohibit the dispute to be decided by arbitration. As arbitration became a widely accepted alternative to litigation in national courts, the scope of arbitrable disputes was expanded to allow for a wide range of disputes to be resolved through arbitration. The authority to restrict arbitrability lies with the legislator, which generally does so only in cases where it is warranted by serious public policy concerns. The Slovenian Arbitration Act is a modern act that provides for a wide concept of arbitrability. When the Slovenian legislator unexpectedly tried to restrict the arbitrability of concession disputes by adopting an authentic interpretation of law restricting arbitrability for concession disputes, it created significant uncertainty for the parties who have included an arbitration clause in their concession contracts or who were considering doing so. The Slovenian Constitutional Court confirmed that the authentic interpretation of law cannot be used to give binding interpretations on how to rule in specific cases because it would undermine the core principle of the separation of powers and independence of judges. While it has now been settled that the authentic interpretation should not be applied, it nevertheless remains a skeleton in the legislator’s closet since the legislator had not expressly invalidated or retracted the authentic interpretation.

ARBITRATION LAW AND PRACTICE IN ALBANIA: FEATURES, CHALLENGES AND PERSPECTIVES

Author(s): Jola Gjuzi / Language(s): English Issue: 4/2024

Arbitration, as an alternative dispute resolution mechanism, has gained significant traction worldwide. This is primarily due to its consensual nature, the involvement of non-governmental adjudicators, as well as its efficiency, flexibility and confidentiality. In Albania, international arbitration remains a promising avenue for resolving commercial and investor-state disputes, especially considering the country’s efforts towards a consolidated market and deeper integration into the regional and global economy. However, the arbitration landscape, particularly the domestic one, is not without challenges as Albania pursues to attain an effective rule of law. This paper provides an overview of the rules of arbitration under the Albanian domestic law, as well as the applicable international law. It then explores the current state of arbitration practice in Albania, the various perceptions among the pertinent political, business and legal communities, the challenges this practice encounters, and perspectives for its progress.

CHALLENGES AND PERSPECTIVES OF ARBITRATION IN SOUTH EAST AND CENTRAL EUROPE – SERBIA

Author(s): Jelena Vukadinović Marković / Language(s): English Issue: 4/2024

With the adoption of the Law on Arbitration in 2006 (hereinafter referred to as the LA), Serbia has joined the ranks of the countries that have provided for the issue of arbitration in a modern and comprehensive manner. However, over the course of almost two decades of application of this Law, certain ambiguities and lack of clarity have come to surface. This paper aims to addresses only a number of those, focusing on the arbitration agreement, arbitrability, and the appointment of the arbitral tribunal. The author starts from the assumption that fundamental solutions and dilemmas of arbitral decision-making are centred around the issue of arbitrability, and therefore attaches central importance in this paper to the said issue. The author acknowledges the flexibility of the solutions adopted in the Law, nevertheless advocating for an even broader interpretation and extension of the concept of arbitrability to include the so-called grey area disputes.

MONTENEGRO RECAP: THE STANDARD OF FAIR AND EQUITABLE TREATMENT (FET) AS A CATALYST FOR INVESTMENT DISPUTES

Author(s): Nikolina Tomović / Language(s): English Issue: 4/2024

The fair and equitable treatment (FET) standard stands for one of the most significant yet debated principles in safeguarding foreign investments. While its wording is often broad and vague, its definition often emerges through arbitral awards based on the particulars of each case. This paper analyses the FET clauses in Montenegro’s Bilateral Investment Treaties (BITs) within the context of its EU accession and modern approaches to FET regulation. By examining Montenegrin BITs and reviewing past disputes, the paper explores key aspects of FET application in Montenegro’s Investor State Dispute Settlement (ISDS) practice so far. Given that the FET standard has been a central issue in nearly all disputes against Montenegro, the analysis underscores the need to review and refine FET regulation in Montenegrin BITs, in order to ensure better protection for foreign investments and clarify which state actions violate FET. Furthermore, the paper compares Montenegro’s FET clauses with those in EU practice, offering recommendations for aligning it with more robust frameworks.

ARBITRATION UNDER TURKISH LAW: PRACTICE, ENFORCEMENT & BEYOND

Author(s): Özge Varis / Language(s): English Issue: 4/2024

Arbitration is not a new concept under Turkish law; in fact, arbitration has been regulated in detail and it has been interpreted in various cases before Turkish courts. However, the Turkish arbitration regime has a multidimensional and fragmented structure under the Turkish legal system. Along with a general criticism of arbitration as a dispute settlement system, arbitration in Turkish law has been subject of fundamental criticisms including involvement and position of domestic courts, enforcement of awards, and conditions of arbitration and arbitrators. Therefore, the main aim of this paper is to provide a general view of arbitration under the Turkish legal system. In order to provide this perspective, this paper will discuss the pros and cons of arbitration in Turkish law in various aspects, particularly in terms of the structure of arbitration and enforcement of arbitral awards.

ARBITRATION IN ROMANIA: LOOKING GOOD, HOPING FOR MORE

Author(s): Cristina Alexe,Oana Șoimulescu / Language(s): English Issue: 4/2024

This paper provides a current overview of the arbitration legal framework in Romania, analysing the historic development of an arbitration friendly jurisdiction. The paper goes on to describe the implementation of the expected international arbitration pillars, and illustrate some novel and progressive legal provisions on arbitration relating, inter alia, to, applicable law, parallel proceedings and arbitrators’ liability. It provides a critical commentary on certain persistent ‘arbitration unfriendly’ terms in the Romanian national arbitration law and take on two very recent legislative developments involving investment arbitration and regulation of institutional arbitration. It also pinpoints the need for construction disputes to be settled by appropriate fora such as specialist construction courts or in arbitration, and the need for the current expert practice with respect to the evaluation of time extensions and additional payment (which are, at present, reflecting the common law approach) to be adapted to the civil liability principles enshrined in the Romanian Civil Code.

INTERNATIONAL COMMERCIAL ARBITRATION LAW AND PRACTICE IN BOSNIA AND HERZEGOVINA: LESSONS FROM INVESTOR-STATE DISPUTE SETTLEMENT (ISDS) REFORM

Author(s): Fahira Brodlija / Language(s): English Issue: 4/2024

International arbitration, both commercial and investment, is generating increasing interest and practice in Bosnia and Herzegovina (BiH), as well as more generally in the Western Balkans region. The past decade has seen an increased number of international business transactions and investments, but also related disputes involving parties or claims connected to BiH. However, the desired progress and growth of commercial arbitration are hampered by the outdated legislative and institutional framework, and the lingering lack of capacity of the local courts, which are expected to act as domestic legal anchors of arbitration agreements and awards.The sluggish development of the commercial arbitration framework lies in stark contrast to the dynamics in investment arbitration, which is undergoing intensive reforms in BiH and in the world. In this space, BiH has been at the forefront of innovative legal and institutional reforms, revitalizing its investment protection standards and creating mechanisms for their effective application.This paper explores the distinct features of the two legal systems in BiH, looking into the underlying issues faced, their common denominators, and the investment arbitration reform success factors that can be emulated to enhance the commercial arbitration framework. As such, it aims to reverse engineer the adopted reforms and lessons learnt from the investment arbitration sphere that could help unlock the potential of commercial arbitration in BiH.The article will unfold as follows: it will first provide a primer on the existing legal and institutional framework for commercial arbitration in BiH, highlighting their special features, distinct from the prevailing international standards. Then the analysis turns to investment arbitration, outlining the motivations, policy background, and concrete reform measures implemented in this field. Finally, the paper arrives at the potential intersections between the two fields and provides recommendations for their mutual reinforcement.

Wyrok Wojewódzkiego Sądu Administracyjnego w Szczecinie z dnia 19 lipca 2023 roku (I SA/Sz 250/23)

Author(s): Not Specified Author / Language(s): Polish Issue: 50 (4)/2024

Facilitating legal pathways for construction legitimisation

Author(s): Raluca Chelaru / Language(s): English Issue: 8/2023

In Romania, construction activities are strictly regulated and can only proceed upon securing a building permit (in Romanian, "autorizație de construire") from local authorities. This permit ensures compliance with legal standards on location, design, and intended function of the future construction. Before seeking this building permit, specific procedures need to be followed, which vary based on land type (urban or rural) and its designated use (agricultural or industrial).The building permit in Romania follows a series of steps that must be meticulously completed. This includes acquiring the urban planning certificate, securing necessary endorsements and approvals from various authorities (as outlined in the urban planning certificate or mandated by law), and submitting comprehensive technical documentation for the intended construction.

Work crimes in issuing a construction authorisation

Author(s): Bogdan Bărbuceanu / Language(s): English Issue: 8/2023

Social relationships are the generic legal object of work crimes. These relationships are meant to sustain the smooth running of the activities of public authorities, as well as the legal interests of individual and legal entities including those functioning in constructions. Construction Law, which is a branch of Law, must offer protection of social relationships regarding the security of erecting buildings by respecting the existing norms. Unfortunately, there are situations in which the public servant himself, who is supposed to respect the law, breaks its provisions in the process of issuing a construction authorisation and creates a state of danger for social security, thus placing himself in the area of criminal law by committing work crimes in this activity. In order to diminish the occurrence of this situation, a continuous thorough examination should be done both theoretically and in practice. This could help us identify the possibility of improving the provisions for incriminating norms so that this activity could be run under legal conditions and full security for the citizen in the context of an ever increasing personal and general interest in construction development.

A Critical Analysis of the Evolution of Datio in Solutum Law in the Context of the National Housing Strategy 2022-2050

Author(s): Mihnea-Tudor D. ORJAN,Adelina Elena STAN / Language(s): English Issue: 1/2024

This article critically examines Datio in Solutum Law (Law no. 77/2016) in its current form, especially in light of the National Housing Strategy 2022-2050. Initially enacted to address debtor-creditor relationships in Romania, the law's evolution has sparked significant debate in the legal, economic, and social spheres. The article traces the amendments made by Law no. 52/2020, which introduced the “condition of hardship”, altering the application and perception of the law. By contextualising the law within the broader national housing policy, the study highlights the ongoing challenges in securing decent housing for the Romanian population, emphasising the persistent necessity of long-term borrowing for home acquisition. It critiques the state’s reliance on free market mechanisms for housing solutions, questioning whether this approach aligns with the constitutional ideal of a social state or perpetuates a form of economic bondage. The article concludes that while Law no. 77/2016 now aligns better with national housing strategies and with the vision expressed by Romanian banks, its effectiveness and ethical implications warrant continuous scrutiny.

Conclusion of the Contracts at a Distance – Particularities in the Banking Law Field

Author(s): Andreea Bianca Radu / Language(s): English Issue: 1/2024

In a world that is in constant movement and development, both economically and socially, a world that has less and less time to waste with lengthy and formalistic procedures, it has become more than imperative to move to digitised procedures and to conclude as many contracts as possible at a distance. the main advantage of these procedures is that they can be concluded through a faster and less formalistic process, from the comfort of your own office or home. The present article aims to analyse the national and European rules governing the legal institution of concluding contracts at a distance in relation to the banking field and its specific regulations. In addition, it aims to show how distance contracts can be concluded more easily, what types of signatures can be used to conclude these contracts, and their legal force in the courts.This study is supplemented by an analysis of the national case law on the subject of banking contracts concluded at a distance and how they have or have not been enforcedbanking law;

Statelessness. From Definition to Manifestation

Author(s): Andrei Tinu / Language(s): English Issue: 1/2024

Statelessness is a special legal situation, manifested by the lack of a direct relationship between the citizen and the state. A stateless person is a person who, for various reasons, is not a national of any of the 195 states recognised by the United Nations. Since the adoption in 1954 of the Convention on Statelessness and up to the present day, when there are some twelve million stateless people in the world, international bodies have established several legal measures and mechanisms to support stateless persons. In this article, the author aims to make a summary of the international documents on statelessness and a qualitative analysis of the way in which the international provisions have been inserted into the Romanian legislation.

Advancing Digital Transformation in European Trade: Integrating Smart Contracts with CISG and UNCITRAL Model Law on Automated Contracting

Author(s): Larisa-Antonia Capisizu / Language(s): English Issue: 2/2024

A smart contract is an agreement written wholly or partially in computer code which is automatically executed on a blockchain or a distributed ledger technology (DLT). The legal nature of smart contracts has been widely debated in legal literature. This paper analyses the validity and formation of smart contracts through the lens of the United Nations Convention on Contracts for the International Sale of Goods (CISG) and the UNCITRAL Model Law on Automated Contracting, providing insights into their alignment with international legal principles. The paper concludes that a smart contract used as an international sales contract can be deemed valid under the CISG. Specifically, such a contract can satisfy the formation requirements set forth by the Convention, as it demonstrates a clear indication of the parties’ intent and fulfills the essential elements of offer, acceptance, and sufficient definite indication of the goods, price, and quantity. Moreover, the UNCITRAL Model Law on Automated Contracting has put an end to the controversy regarding the legal validity of smart contracts.

The Temporary Employee's Right to Wages in Accordance with Legislation in Romania and other EU States

Author(s): Maria Cristina Ichim (Balaneasa) / Language(s): English Issue: 2/2024

This material aims to present the summary of the provisions of the legislation in Romania but also of some EU states regarding the right to salary of the temporary employee. Work through a temporary employment agency being an atypical work, it is natural that the salary of the temporary employee has some particularities (compared to that of a regular employee), and the purpose of this material is precisely the presentation of these particularities starting from the regulation of the Framework Directive 2008/104/CE.