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Wywłaszczenie pośrednie i postępujące a ochrona inwestora w świetle międzynarodowego prawa inwestycyjnego

Author(s): Michał Bors / Language(s): Polish Issue: 1/2014

Respect for the rights of an investor’s ownership is one of the most important elements to be taken into account by an investor when deciding whether to launch an investment project in a third country. The purpose of this article is to discuss issues related to the institution of indirect and creeping expropriation in international investment law and to provide legal differences between these two institutions. In the following text, reference is made to the concept of direct expropriation known under domestic law, presenting differences about indirect and creeping expropriation, which are both unknown in Polish civil law. Differentiation of expropriation clauses shall require the presentation of how these institutions developed in public international law in the period after the World War II. The text analyses clauses present in international investment law contained in the universal treaties, regional treaties, agreements, multilateral agreements, as well as in bilateral investment treaties. The article presents the current law cases of international arbitration tribunals that have developed criteria that should be met to interpret state actions as indirect and creeping expropriation. In some cases, intervention by the state in the investor’s property is allowed for the purposes of economic regulation and is justified due to the public good or public welfare. The final part of the article discusses the category of such actions taken by the host country, known as the regulatory measures. These actions, under certain conditions, may be legal and carry no obligation to compensate.

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Indigenous Mechanisms of Transitional Justice as Complementary Instruments to State Justice Systems

Author(s): Agnieszka Szpak / Language(s): English Issue: 2/2017

Transitional justice is resorted to within the framework of transition from armed conflict to peace and from authoritarian regimes to the democratic ones. To reach the aims of transitional justice and to better integrate the needs and perspectives of the indigenous peoples that very often are victims of serious human rights violations in the transitional context, as well as the colonisation context, indigenous instruments of justice may be utilised. As such they may be treated as complementary to other transitional justice mechanisms. The article aims to find a new perspective on the complementary role of the indigenous justice and the State justice systems within the framework of transitional justice as well as to take into account the indigenous peoples’ needs and customs. The overall aim of the paper is to answer the question whether it is desirable for such indigenous justice instruments to complement the State justice systems through a better integration of the needs and customs of indigenous peoples. In the concluding remarks, a model of complementarity model of transitional justice that includes indigenous instruments will be proposed.

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Technological Innovations and International Humanitarian Law

Author(s): Eric Pomès / Language(s): English Issue: 2/2017

In recent years, armed conflicts have changed in nature (civil war, ‘terrorism’) and the means used are increasingly technological (robotisation, cyberwar). Faced with these developments, some would claim International Humanitarian Law (IHL) is outdated. While these technological innovations present new challenges in the application of IHL, it still constitutes a relevant legal framework for armed conflicts and the conduct of hostilities. Indeed, the flexibility of IHL allows it to adapt to contemporary conflicts. Therefore, this shows that the statements about its obsolescence are primarily political in nature.

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Ochrona danych osobowych w związkach wyznaniowych w świetle unijnego rozporządzenia nr 2016/679

Author(s): Michał Hucał / Language(s): Polish Issue: 20/2017

The issue of protection of personal data in religious communities will be subject of a significant change due to (EU) Regulation No. 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data. The new EU regulation introduces an important mechanism that forces churches to develop an internal data protection law and an independent supervisory authority. In practice this means strengthening the constitutional right to privacy in the largest churches based on their internal institutions, but also involves a risk of subjecting many smaller religious communities to public scrutiny. Many doubts regarding Article 91 presented by Polish commentators specializing in the protection of personal data show how important this issue and the preparation of changes are for religious communities.

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Orzecznictwo austriackiego Sądu Najwyższego w sprawie reprezentacji wyznaniowych osób prawnych Kościoła Katolickiego

Author(s): Marek Strzała / Language(s): Polish Issue: 20/2017

The Austrian Supreme Court, in a similar way to the Polish Supreme Court, states that canon law rules governing church property are relevant in the field of acts of legal entities of the Catholic Church. Hence, the views and arguments presented in its judgements in cases concerning the management of ecclesiastical property are also important for Polish legal practice. Between 1959 and 2013 a number of judgements were issued. There were a variety of cases, starting from the sale of the immovable property, through leasing it, and ending with the sale of fishery rights and contract of employment. In relation to those events a number of relevant legal views were stated by the Austrian Supreme Court. It considered the meaning of the term “alienation” (in the strict and broad sense), the obligation of a judge to examine canon law requirements for managing ecclesiastical property, the relevance of the particular canon law, the possibility of giving consent required by canon law per facta concludentia and scope of proxy authorization to manage church property. The question of treating the lease as an alienation in terms of the Code of Canon Law has also been raised. The case-law deals with many problems associated with the application of canon law in practice and provides a number of arguments to the parties in possible court proceedings.

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Noszenie chusty islamskiej w miejscu pracy a prawa i wolności innych podmiotów prawa. Rozważania na kanwie wyroków Trybunału Sprawiedliwości Unii Europejskiej z dnia 14 marca 2017 r. w sprawach: Samira Achbita przeciwko G4S Secure Solutions (C-157/15

Author(s): Michał Ożóg / Language(s): Polish Issue: 20/2017

The aim of this article is to present an analysis of the EU Court of Justice’s rulings of March 17th 2017, in the Samira Achbita vs. G4S Secure Solutions case (C–157/15) and the Asma Bougnaoui vs. Micropole case (C–188/15), in the context of the exercise of the freedom of thought, conscience and religion in situations involving contact with other entities. The problem of wearing a headscarf is presented with reference to the client’s freedom of belief and the company’s policy of religious and ideological neutrality. The article provides a critical view of the ruling due to the court’s failing to take into account the specific character of the freedom to express one’s religious beliefs. Special attention was paid to the question of religion, as one of grounds of discrimination being prohibited by Directive 2000/78/EC, as well as to the expression of religious, ideological or philosophical beliefs, and the problem of proselytism in the workplace.

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Mérlegen a Nyelvi charta

Author(s): Gábor Kardos / Language(s): Hungarian Issue: 3/2017

This paper analyses certain inherent problems of the European Charter for Regional or Minority Languages, such as its effort to separate from politics the protection of minority languages as a part of the European cultural heritage, its relationship with official languages and the issue of dialects. This paper also deals with the delays of submitting governmental reports, the political debates over draft recommendations in the Council of Ministers, the reduction of efforts to implement recommendations and the inadequacies of the monitoring process between governmental reports.

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A Kisebbségvédelmi keretegyezmény húsz év után – tapasztalatok a negyedik monitoring ciklus végén

Author(s): Erzsébet Szalayné Sándor / Language(s): Hungarian Issue: 3/2017

Twenty years have passed since the introduction of the Framework Convention for the Protection of National Minorities (Framework Convention), and there are increasingly more indications that the Framework Convention has become an international human rights instrument able to set standards for the protection of the rights of persons belonging to national minorities. This process requires periodically the solution of procedural and substantive questions. Moreover, the number and the gravity of the challenges affecting the effective application of the Framework Convention has not diminished in recent years – still, or indeed for this very reason, the implementation of the convention by the states needs to be continuously monitored. This paper aims, at the advent of the fifth monitoring cycle, to highlight the features that were developed during the first two decades of the mechanism.

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A Kisebbségvédelmi keretegyezmény és a Nyelvi charta végrehajtása – egységes standard vagy szétfejlődés?

Author(s): János Fiala-Butora / Language(s): Hungarian Issue: 3/2017

This paper analyses the effectiveness of the European minority protection system through the opinions of Council of Europe’s monitoring bodies. It shows that the Advisory Committee on the Framework Convention for the Protection of National Minorities (AC FCNM) and the Committee of Experts of the European Charter of Regional and Minority Languages (CoE ECRML) have evaluated Slovakia’s performance under these two treaties very differently in the last monitoring cycles. These divergences cannot be explained by differences in the two treaties or by inadequate sources of information, since both bodies received almost identical shadow reports from civil society. This paper concludes that in the examined cases, the CoE ECRML is taking a stricter position on violations of minority rights, while the AC FCNM is much more deferential towards the government’s opinions and formalistic, superficial and dismissive with regard to concerns of the minority communities.

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Fából vaskarika, avagy reflexiók a Kisebbségvédelmi keretegyezmény tanácsadó bizottságának ún. 4. tematikus kommentárjára vonatkozóan

Author(s): Norbert Tóth / Language(s): Hungarian Issue: 3/2017

The Advisory Committee on the 1995 Framework Convention for the Protection of National Minorities (Framework Convention) adopted a thematic commentary on the scope of the Framework Convention on May 27, 2016. This was the fourth thematic commentary in a row, and as such, the committee relied on its experiences and observations made during the previous monitoring cycles. This text aims at analysing the thematic commentary in question by using strictly the methods for interpreting international treaties. By doing so and as a conclusion, this paper studies the gap between the text of the Framework Convention and the interpretation provided within the thematic commentary.

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Európai polgári kezdeményezések a nemzeti kisebbségek védelmében

Author(s): Péter Varga,Balázs Tárnok / Language(s): Hungarian Issue: 3/2017

The European Citizens’ Initiative, which has been in operation since April 2012, is a new instrument of the European participatory democracy, inspired by the constitutional development of member states and incorporated into EU Law by the Lisbon Treaty. Citizens’ committees established by members of national minority organisations have attempted to make use of the opportunities provided by this new instrument. This paper analyses the two initiatives that national minorities launched so far and their legal fates, with special emphasis on the impact they had on the evolution of the ECJ’s case law.

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Szerbia akcióterve a nemzeti kisebbségek jogainak megvalósítására

Author(s): Mihály Nyilas,Zsuzsanna Mackó / Language(s): Hungarian Issue: 3/2017

This paper provides a presentation and analysis of the Action Plan for the Realisation of the Rights of National Minorities adopted by the government of Serbia on May 3, 2016. The analysed topics include: reasons that led Serbia to elaborate and adopt an action plan for the protection of minority rights; the drafting process; topics, objectives and activities with special relevance for the Hungarian community; an evaluation of the plan’s content and the process of its implementation; other considerations and activities envisaged under the plan.

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City Diplomacy

Author(s): Beata Surmacz / Language(s): English Issue: 1/2018

Diplomacy is one of the oldest mechanisms of managing the international environment. It is traditionally associated with operation of the state. However, in contemporary times the parameters of the international environment have changed considerably. States are no longer the only entities participating in international relations. Along with states, sub-state actors (regions and cities) have emerged, as well as supra-state (the EU) and non-state entities. Sub-state actors go through the process of repositioning in the contemporary international order: from being an object of management to building their own subject status in this respect. In order to achieve this goal, they increasingly use mechanisms and instruments which were the sole domain of the state until recently. Despite substantial attention paid to regional diplomacy, academic discussion has focused less on the increasing role of cities in diplomacy. The paper aims to introduce the concept of city diplomacy. It will be argued that cities have become important actors on the world stage, that they have developed diplomatic apparatus, and that city diplomacy is becoming more and more professional diplomatic activity.

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ЗНАЧЕНИЕТО НА РИМСКОТО ПРАВО ЗА ЮРИДИЧЕСКОТО ОБРАЗОВАНИЕ ВСТЪПИТЕЛНА ЛЕКЦИЯ

Author(s): Trayanov Trayan / Language(s): Bulgarian Issue: 2/2016

The article is devoted to the place of the university in modern education and the role of Roman law in law education. The author emphasizes the absence of a textbook that presents the subject thoroughly and thoroughly. Among the main issues that the article highlights are the materialistic spirit of time and the lack of awareness on the part of lawyers about the importance of historical disciplines, among which the most important is Roman law.

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UNDERSTANDING AND COMBATING JUDICIAL CORRUPTION

Author(s): Aneta Arnaudovska / Language(s): English Issue: 1/2018

The research item of the paper is the term "judicial corruption". This particular term was ignored in the majority of countries of the Council of Europe. Judicial corruption as a term was first mentioned in the PACE documents- Resolution 1703 (2010) on judicial corruption. The author is trying to give answer to the question- Could there be a balance between establishing the responsibility of the judge and the independence guarantees? The term judicial corruption should not be manipulated with, i.e. the criminal cases of corruption where the judges and prosecutors are involved should be proved and led in line with all ECHR Article 6 fair trial requirements, and in compliance with the principle for presumption of innocence.

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A kisebbségek védelme az olasz–horvát és az olasz–szlovén kétoldalú kapcsolatokban

Author(s): Balázs Vizi / Language(s): Hungarian Issue: 4/2017

Following the collapse of Yugoslavia, the situation of Italian minorities living in successor states raised great concerns in Italy. This article offers an overview of the evolution of bilateral minority protection instruments between Italy and Croatia, Slovenia respectively. New treaties and initiatives emerged in the 1990s in this regard strongly build on the post- WWII international legal arrangements concerning the situation of minorities. The analysis of the relevant treaty provisions in a broader political and historical context leads to the conclusion that from the 1990s bilateral minority protection agreements rather reflect a political commitment than a set of strict normative obligations.

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POJAM GENOCIDA U PRAVU I NAUCI: JAZ KOJI SE ŠIRI?

Author(s): Kjell Magnusson / Language(s): Serbian Issue: 1/2013

Der Autor dieser Abhandlung widmet sich der Frage nach der begrifflichen Bestimmung des Völkermords. In den Eingangsbemerkungen nimmt er Bezug zum Internationalen Strafgerichtshof für das ehemalige Jugoslawien (ICTY) und zur Haltung des Internationalen Strafgerichtshofes (ICC) diesbezüglich. Im ersten Teil der Abhandlung führt er an die Ansätze des Begriffes Völkermord, das zum ersten Mal von Raphael Lemkin formuliert wurde, als auch der Definition aus der Konvention über die Verhütung und Bestrafung des Völkermordes aus dem Jahre 1948. Versteht man unter diesem Begriff alles, angefangen von der Vertreibung von Minderheiten bis hin zum einzelnen Massakern fasst, bzw. geht man von einem breiten Verständnis aus, so verliert sein Konzept an Bedeutung und wird zur allgemeinen Metapher für das Böse.; mit anderen Worten: es devalviert. Hier ist nicht die Gewaltanwendung per se entscheidend, sondern die Tatsache, dass jemand bewusst Maßnahmen durchgeführt hat, um ein Volk gezielt zu zerstören.

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From the Garden-City to the Idea of Sustainable Development: a Case Study of the Garden Tri-City Near Warsaw

Author(s): Magdalena Szczepańska / Language(s): English Issue: 2/2018

The conception of a garden-city assumes creation of an organized unit in functional and spatial terms ensuring harmonious relations among economic growth, protection of the natural environment and catering to different kinds of social needs. Thus, this former city model is deeply rooted in the contemporary idea of sustainable development. The article aims to describe a research procedure that would allow a determination of the degree of implementation of the garden-city concept in relation to contemporary cities. Moreover, the paper presents a comparative analysis of selected garden-cities in the context of the sustainable development idea. Historical, social, environmental and economic factors were analyzed as well as the functional-spatial structure and strategic documents of the cities. The entities investigated were shown to be the Polish interpretation of the garden-city idea and local rules include requirements concerning the principles of sustainable development.

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Ratio Analysis of Infrastructure Investments: a Case Study of the Municipalities and Communes of the Olsztyn County

Author(s): Waldemar Kozłowski / Language(s): English Issue: 2/2018

A fundamental aspect of infrastructure investments made by local authorities is the evaluation of their effectiveness. Considering their public character, infrastructural investments require more methodological sophistication to allow an assessment of a number of areas which have been ignored in previous analyses. This paper introduces a model for evaluating infrastructural investments based on select socio-economic ratios. The results of the research can be used by local authorities during investment planning and evaluation.

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Identification of Conditions of the Spatial Economy in Cross-Border Regions

Author(s): Andrzej Miszczuk / Language(s): English Issue: 2/2018

The objective of the article is the analysis of conditions of conducting coherent spatial management specific to cross-border regions. The most important are geopolitical conditions, determining the character and functions of the national border. Socio-economic and spatial processes occurring in the conditions of both closed and open borders are also of importance. The institutional-legal distance occurring between entities located on both sides of the border may prove to be a serious hindrance in the conducting of coherent spatial policy in cross-border regions.

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