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1
Shulakov, A. A. "RUSSIAN FEDERATION PUBLIC POLICY INTERESTS AND INTERNATIONAL ADOPTION." Lex Russica, no. 11 (November 22, 2019): 56–69. http://dx.doi.org/10.17803/1729-5920.2019.156.11.056-069.
Анотація:
The article is devoted to the protection of the Russian Federation public policy interests in the field of intercountry adoption. It is established that strengthening of such protection entails changes in the legislation. Such changes are connected either with the super-mandatory character of already existing statutory mandatory substantive rules or with the emergence of new super-mandatory rules. In the field of intercountry adoption in Russia, this process is particularly striking. The study highlights that the general equation contained in Art. 1192 “Rules of direct application” of the Civil Code of the Russian Federation establishes two ways that allow by analogy to determine the super-mandatory nature of certain mandatory substantive rules stated in the Family Code of the Russian Federation: “by reference in the mandatory rules themselves” (the over-mandatory character of the rule is expressly determined by the legislator) or “because of their particular importance also for the protection of rights and legally protected interests” (the over-mandatory character of the rule is determined by the executor of law). It is concluded that the emergence of constitutionally significant values/public interests in the content of the mandatory substantive rule (“protection of morals, health, rights and legitimate interests of other family members and other citizens”, etc.) forms a criterion that allows the executor of the law to determine such rules as rules of over-mandatory character. Based on the analysis of international treaties of the Russian Federation on interstate cooperation in the field of adoption of children, the article defines the fundamental principles that make up the structure of intercountry adoption in the Russian Federation. It is established that the additional conditions and requirements of the state of child’s origin are included in the regulation of intercountry adoption (provisions of articles 165, 124-133 of the Family Code of the Russian Federation; provisions of bilateral treaties between Russia and European countries where more than 85% of Russian children are adopted (France, Italy, Spain)) to protect the interests of the RF public policy.
2
Pauknerová, Monika. "Mandatory rules and public policy in international contract law." ERA Forum 11, no. 1 (March 2010): 29–43. http://dx.doi.org/10.1007/s12027-010-0151-2.
3
Bansal, Sharad. "The Dampening Effect of Foreign Mandatory Laws." Asian International Arbitration Journal 14, Issue 2 (December 1, 2018): 165–79. http://dx.doi.org/10.54648/aiaj2018009.
Анотація:
Party autonomy – a foundational facet of international arbitration – is often at loggerheads with public policy elements. A recurrent debate in international arbitration has been the extent of limits imposed by public policy on party autonomy. One aspect of this debate is when parties expressly opt for a law governing the merits of the dispute, can an arbitral tribunal derogate from such law and apply a mandatory rule which it finds to be relevant to the dispute? This issue has repercussions on the enforceability of arbitration agreements as well as arbitral awards where mandatory rules are involved. In this article, the author argues that arbitrators are bound to apply mandatory laws notwithstanding the fact that such a measure constitutes a departure from the lex contractus, since parties inherently lack the capacity to contract out of mandatory rules. To the extent that mandatory rules reflect public policy they now cast a limit to parties’ lex contractus.
4
Zhilsov, A. N. "Mandatory and Public Policy Rules in International Commercial Arbitration." Netherlands International Law Review 42, no. 01 (May 1995): 81. http://dx.doi.org/10.1017/s0165070x00003387.
5
Zamir, Eyal, and Ori Katz. "Do People Like Mandatory Rules? The Impact of Framing and Phrasing." Law & Social Inquiry 45, no. 4 (May 12, 2020): 1052–92. http://dx.doi.org/10.1017/lsi.2020.7.
Анотація:
Market regulation has traditionally focused on disclosure duties, yet mounting evidence questions their effectiveness. The efficacy of nudges is similarly doubted, especially when suppliers counter their effects. Consequently, there is growing interest in mandatory regulation of the content of contracts. Previous studies have examined public opinion about nudges but not about mandatory rules.We explore how the formulation of mandatory rules might affect their judged desirability, focusing on the choices: (1) between negative and positive formulation; and (2) between merely establishing substantive mandatory rules and supervising the wording of the contract as well. We also examine laypersons’ general attitude toward mandatory rules.We report the results of four studies, conducted with a representative sample of 968 US adults and 795 MTurk master workers. Contrary to our conjecture, we found that subjects generally judged wording rules as more desirable than merely substantive ones, and positive rules as more desirable than negative ones. There also appears to be strong support for pro-customer mandatory rules, even among conservative people. These results arguably legitimize more, and more effective, mandatory rules. They also suggest that the relative paucity of mandatory rules in US law is not due to public opposition to them but to other reasons.
6
Pavić, Vladimir. "Bribery and International Commercial Arbitration – the Role of Mandatory Rules and Public Policy." Victoria University of Wellington Law Review 43, no. 4 (December 1, 2012): 661. http://dx.doi.org/10.26686/vuwlr.v43i4.5016.
Анотація:
Although designed to resolve private disputes, usually commercial in nature, arbitration may nevertheless encounter during its course allegations of impropriety and criminal behaviour. In the context of international commercial arbitration, the most common of those are allegations of bribery. However, tribunals may adjudicate only matters of private law and, should they establish existence of bribery, may draw only civil law consequences thereof. An additional problem in this respect is determining the body of rules that will be applicable in defining the very notion of bribery, since some aspects of bribery are almost universally prohibited, while the others are banned only in certain jurisdictions. In determining the law applicable to the matters of bribery, tribunals then face choice-of-law dilemmas. Each of the public policy techniques (overriding mandatory provisions, international and/or transnational) has its strengths and weaknesses.
7
Garcia Rolo, António. "Steering Companies Towards Policy Objectives Through Mandatory Disclosure Rules in EU Law." European Company Law 19, Issue 2 (March 1, 2022): 33–39. http://dx.doi.org/10.54648/eucl2022006.
Анотація:
Mandatory disclosure rules applicable to EU companies, such as the basic information every company is required to disclose on a public register and periodical financial information, have traditionally sought to mediate agency problems between managers and shareholders and company insiders and outsiders. However, mandatory disclosure foreseen in EU law has since expanded beyond that, especially in large companies, listed companies or those carrying out certain activities. Some those more recent mandatory disclosure rules – such as the Shareholders Rights Directive and the environmental and social disclosure rules foreseen in the Non-Financial Reporting Directive and the Sustainable Finance Disclosure Regulation – have gone beyond the traditional end of mediating agency problems (or, in the case of listed companies, provide price informativeness) and have, instead, been seeking to use their effects on corporate governance to steer companies towards distinct policy objectives set out by the legislator. By equipping the potential users of that information – shareholders and stakeholders alike – with more information, the legislator seeks to change the behaviour of the disclosing company without being too forceful or imposing.
8
Agstner, Peter, and Davide Marchesini Mascheroni. "Breach of the Mandatory Bid Rule: Minority Shareholders’ Protection in the Public vs. Private Enforcement Debate." European Company and Financial Law Review 17, no. 6 (December 1, 2020): 726–59. http://dx.doi.org/10.1515/ecfr-2020-0025.
Анотація:
The mandatory takeover bid has been broadly investigated in the literature. The economics of such control acquisition and the pros and cons of the mandatory bid rule are nowadays well-established. Uncertainty still reigns with respect to the fundamental question whether private law remedies are available to minority shareholders in the case of a breach of the duty to make a takeover bid. Statutory law across Member States is essentially silent on this matter, and at a supranational level the CJEU’s case law does not offer valid precedents. European policymakers rely on public enforcement mechanisms, while an action for damages against the bidder is not made available or only reluctantly accepted by the courts. Italy is an outlier, allowing today – after the consolidation of the principles expressed in the leading case Fondiaria-SAI – the recourse to private enforcement remedies. This article shows that, for the purpose of good functioning and competitiveness of capital markets, private enforcement plays an important role against violations of the mandatory bid rules. Thus, public enforcement, which often proved to be ineffective or bypassed especially in cases of acting in concert, should be complemented by the recognition of civil liability of the bidder for breach of the duty to launch a takeover bid. Furthermore, the legal regime of such liability is outlined, thereby investigating the (contractual or tortious) nature of the bidder’s liability and the operativeness of such a regime (e. g., amount of damages, application of compensatio lucro cum damno rule).
9
MacNeil, Iain, and Alex Lau. "International Corporate Regulation: Listing Rules and Overseas Companies." International and Comparative Law Quarterly 50, no. 4 (October 2001): 787–810. http://dx.doi.org/10.1093/iclq/50.4.787.
Анотація:
Listing rules have always played a significant role in corporate regulation by controlling the manner in which companies raise capital through the issue of securities and the subsequent trading of those securities between investors. The regulatory role of listing rules can be characterised as the top-tier in a system of regulation for listed companies in which the lower tiers are represented by securities law and general corporate law. Company law represents the bottom tier of regulation as it applies to all companies, albeit with some distinctions made between public and private companies. While company law does contain a substantial body of rules which are subject to change by share-holders (‘default rules’), it also contains a core of mandatory rules (not subject to change by shareholders) which are regulatory in their nature.
10
Badr, Yehya Ikram Ibrahim. "The Grounds for Setting Aside Arbitral Awards under the Egyptian Arbitration Code: Unresolved Choice of Law Issues and Unwanted Extraterritorialism." Arab Law Quarterly 32, no. 1 (December 26, 2018): 33–59. http://dx.doi.org/10.1163/15730255-12321004.
Анотація:
Abstract This article analyses the choice of law issues associated with setting aside an arbitral award under the Egyptian Arbitration Code (the Code), the challenges posed by applying the Code to arbitration conducted outside Egypt, and the lack of a clear criterion to define the Code’s scope of application. Choice of law issues – such as the law governing the parties’ capacity, the law governing the agreement to arbitrate and the applicable curial – are not addressed by defined choice of law rules. Under Egyptian law, there are several conflicting choices of rules. Finally, the article focuses on the Egyptian courts’ tendency to apply Egyptian law extraterritorially, either to protect Egyptian public policy or to apply Egyptian mandatory rules to determine the procedural validity of the arbitral award and the arbitration proceedings in general.
11
Schwab, Stewart J. "Law-and-Economics Approaches to Labour and Employment Law." International Journal of Comparative Labour Law and Industrial Relations 33, Issue 1 (February 1, 2017): 115–44. http://dx.doi.org/10.54648/ijcl2017006.
Анотація:
This article describes the distinctive approaches that law and economics takes to labour and employment law. The article distinguishes between ‘economic analysis of law’ and ‘law and economics’, with the former applying economic models to generally simple legal rules while the latter blends messier institutional detail with legal and economic thought. The article describes three eras of law-and-economics scholarship, recognizing that economics teaches that markets work and markets fail. Era One emphasizes that labour laws and mandatory employment rules might reduce overall social welfare by preventing a benefit or term from going to the party that values it most highly. Era Two emphasizes that labour and employment laws might enhance overall social welfare by correcting market failures arising from monopsony power, externalities, public goods, asymmetric information, information-processing heuristics, and internal labour markets. Era Three uses empirical methods to referee between markets-work and markets-fail approaches. The article argues that unequal bargaining power is not a standard market failure, because even powerful employers have a profit-maximizing motive to provide benefits, such as vacation or safety, that workers are willing to pay for.
12
Deltsova, N. V., U. A. Dorofeeva, M. N. Zubkova, and M. A. Tokmakov. "Application of Foreign Law in Economic Disputes and Implementation of National Interests." SHS Web of Conferences 71 (2019): 02007. http://dx.doi.org/10.1051/shsconf/20197102007.
Анотація:
In the context of globalization, the question of protecting one's own national interests is becoming more acute for the state on whose territory foreign law and order is applied. The application of foreign legislation in economic disputes creates various problems and raises questions related to the establishment of the content of foreign law, which must be resolved in the context of Theoretical understanding and law enforcement practice. This study is aimed at identifying the risks of uncertainty in the application of foreign law to relations involving a foreign element in the Russian legal reality and finding ways to overcome them taking into account national interests. Special attention is paid to consideration of the Institute of non-use (limitations) of foreign law is presented in the form of rules on the application of the mandatory rules of the forum (lex fori), the reservation of public order (order public), and eliminating the use of foreign law in case of conflict.
13
BASE, Graciela. "Notice-and-Comment Rulemaking in Comparative Perspective: Some Conceptual and Practical Implications." Asian Journal of Comparative Law 15, no. 1 (May 18, 2020): 95–125. http://dx.doi.org/10.1017/asjcl.2020.6.
Анотація:
AbstractPublic participation in administrative rulemaking is typically embodied in notice-and-comment procedures essentially mandating the publication of a proposed rule and an opportunity for the public to submit comments thereon prior to its adoption. This article presents a comparative analysis of the notice-and-comment regimes under the Philippine Administrative Code (PAC) and the United States’ Administrative Procedure Act (APA). In stark contrast to the Philippine legal framework which renders compliance with the notice-and-comment procedure practically discretionary on the part of the agency, the APA prescribes the conduct of notice-and-comment as a general rule, and courts rigorously police agencies’ compliance with the procedure. This article argues that the mandatory (or discretionary) nature of the notice-and-comment mechanism impinges on the efficacy of procedural challenges to administrative rules, the standard of judicial review applied to agency statutory interpretation, and the statutory creation of public norms. The article hopes to inspire a re-evaluation of the Philippine framework while providing valuable lessons to other jurisdictions with similar legal architectures.
14
Al-Batoosh, Ahmed Fahd. "Formalism In Commercial Papers." Psychology and Education Journal 58, no. 1 (January 29, 2021): 657–66. http://dx.doi.org/10.17762/pae.v58i1.815.
Анотація:
This study aimed to clarify the legal implications of the check when it is empty of all or some of the mandatory formal conditions, and to indicate the optional conditions that may be included in the check . The optional conditions that may not be included in the check because they are inconsistent with its nature . The researcher concluded that the Jordanian legislator and the Iraqi legislator referred to the mandatory data in the check as an exclusive and not an example, by stipulating it in Article (137) of the Iraqi Trade Law and Article (228) of the Jordanian Trade Law. In particular, where the legislator arranged the invalidity of the check that is empty from the date of its creation. However, the check may include optional data that does not contradict with its nature and does not violate any of the peremptory rules or public order and public morals, and finally the researcher recommends the necessity to organize the optional data and indicate its importance, which does not conflict with the nature and essence of the check as is the case with the mandatory data, and not only referring to other articles provisions.
15
Telaumbanua, Dalinama. "Urgensi Pembentukan Aturan Terkait Pencegahan Covid-19 di Indonesia." QALAMUNA: Jurnal Pendidikan, Sosial, dan Agama 12, no. 01 (March 21, 2020): 59–70. http://dx.doi.org/10.37680/qalamuna.v12i01.290.
Анотація:
Covid-19 is a contagious disease that has the potential to cause a public health emergency. Therefore, preventive measures against these types of infectious diseases are mandatory as soon as possible. Indonesia as a nation of law, the prevention of infectious diseases is mandatory to be formed in a rule or regulation. The urgency of forming rules related to the prevention of Covid-19 is obliged to be formed in government regulation and regulation of the Minister of Health because both regulations are the implementation rules of Law No. 6 of 2018 concerning Health. Based on the author's analysis, there are 5 government regulations that must be established in order to perform countermeasures and prevention of infectious disease threats such as Covid-19 and there are 11 mandatory ministerial health regulations that are required to be established In anticipation of the Covid19 threat. Both types of regulations are very useful in anticipating health emergency that ultimately leads to the health of Indonesian people. It is expected that both of rules can be made immediately in order to give legal certainty in preventing the spread of Covid-19 widely.
Keyword: Forming Rules, Management, Covid-19
Abstrak
Covid-19 merupakan penyakit menular yang berpotensi menimbulkan kedaruratan kesehatan masyarakat. Oleh sebab itu, tindakan pencegahan terhadap jenis penyakit menular tersebut wajib dilakukan secepat mungkin. Indonesia sebagai negara hukum, maka pencegahan terhadap jenis penyakit menular tersebut wajib dibentuk dalam sebuah aturan atau regulasi. Urgensi pembentukan aturan terkait dengan pencegahan Covid-19 ini wajib dibentuk dalam Peraturan Pemerintah dan Peraturan Menteri Kesehatan karena kedua peraturan tersebut merupakan peraturan pelaksanaan daripada Undang-Undang Nomor 6 Tahun 2018 tentang Kekarantinaan Kesehatan. Berdasarkan analisis penulis, ada 5 Peraturan Pemerintah yang wajib dibentuk dalam rangka melakukan tindakan penanggulangan dan pencegahan ancaman penyakit yang mudah menular seperti Covid-19 dan ada 11 Peraturan Menteri Kesehatan terkait yang wajib dibentuk dalam rangka mengantisipasi ancaman Covid-19. Kedua jenis peraturan tersebut sangat berguna dalam hal mengantisipasi kedaruratan kesehatan yang pada akhirnya menjurus pada kekarantinaan kesehatan masyarakat Indonesia. Kiranya kedua jenis peraturan ini segera dibuat dalam rangka memberi kepastian hukum dalam mencegah menularnya Covid-19 secara meluas.
Kata Kunci: Pembentukan Aturan, Penanggulangan, Covid-19
16
Migliorini, Sara. "Quest-ce que sont les lois de police? Une querelle franco-allemande après la communautarisation de la Convention de Rome." European Review of Private Law 19, Issue 2 (April 1, 2011): 187–207. http://dx.doi.org/10.54648/erpl2011012.
Анотація:
Abstract: Article 7(2) of the 1980 Rome Convention provided that nothing in the Convention shall restrict the application of the rules of the law of the forum in a situation where they are mandatory irrespective of the law otherwise applicable to the contract. The Rome Convention however did not define these 'overriding mandatory provisions'. The absence of a definition gave rise to a controversy between French and German courts. According to the latter, overriding mandatory provisions only protect public interests in a strict sense. However, French courts may consider a provision that exclusively protects the interests of the weaker party as an overriding mandatory provision. The definition of 'overriding mandatory provisions' provided in Article 9(1) Rome I fails to bring any real legal certainty. Since the controversy between the French and German courts essentially relates to the systematic relationship between overriding mandatory provisions and connecting factors protecting a weaker party in the Rome I Regulation, an intervention by the European Court of Justice will be necessary. Resume: L'Article 7(2) de la Convention de Rome sur la loi applicable aux obligations contractuelles laissait au juge la possibilité d'appliquer les lois de police du for, peu importe la loi désignée par la Convention même. Néanmoins, la Convention ne dé. nissait pas la catégorie des lois de police. Chaque juge pouvant appliquer ses propres critères de quail . cation des lois de police, une différence existait entre l'approche française et allemande à cette catégorie. D'une part, la jurisprudence allemande ne quali. ait de lois de police que les dispositions visant à protéger des intérêts strictement publics. D'autre part, la jurisprudence française n'hésitait pas à quali. er les dispositions protectrices des parties faibles comme de lois de police. La dé. nition de 'lois de police' contenue dans l'Article 9(1) du Règlement Rome I ne résout pas cette divergence. En effet, celle-ci découle principalement d'une divergence dans l'interprétation des rapports réciproques entre les lois de police et les critères de rattachement protecteurs des parties faibles. Partant, il revient à la Cour de justice d'intervenir pour trancher cette divergence.
17
Ates, Leyla, Moran Harari, and Markus Meinzer. "Positive Spillovers in International Corporate Taxation and the European Union." Intertax 48, Issue 4 (April 1, 2020): 389–402. http://dx.doi.org/10.54648/taxi2020035.
Анотація:
The international spillover effects of specific domestic policies and practices have been subjected to increasing scrutiny from a range of international organizations, academia, and civil institutions with tax policy and practice both central in this discussion. Nevertheless, the extant international tax spillover analyses explore a limited set of spillover pathways or indicators that have been criticized in the literature for not being sufficiently inclusive. The focus of this article is on a newly launched index that includes a comprehensive set of plausible pathways in which spillovers occur. The Corporate TaxHaven Index (CTHI) explores twenty key tax spillover indicators under five categories and assesses sixty-four countries’ tax systems in order to identify policies that should be considered for corporate tax reform to mitigate cross-border tax spillovers. This article particularly aims to highlight international corporate tax spillover pathways in the European Union Member States’ domestic tax laws, regulations and documented administrative practices but limits its scope to domestic tax rules that dispense with positive spillovers. Finally, it analyses Member States’ current performance and concludes with recommendations for future tax reforms in the European Union. Tax spillovers, Corporate Tax Haven Index, transparency rules, public accountability, country by country reporting, mandatory disclosure rules, tax rulings, extractive contracts, anti-avoidance rules, controlled foreign company rules, deduction limitation.
18
Guillod, Olivier. "Medical error disclosure and patient safety: legal aspects." Journal of Public Health Research 2, no. 3 (December 1, 2013): 31. http://dx.doi.org/10.4081/jphr.2013.e31.
Анотація:
<p>Reducing the number of preventable adverse events has become a public health issue. The paper discusses in which ways the law can contribute to that goal, especially by encouraging a culture of safety among healthcare professionals. It assesses the need or the usefulness to pass so-called <em>disclosure laws </em>and <em>apology laws</em>, to adopt mandatory but strictly confidential Critical Incidents Reporting Systems in hospitals, to change the fault-based system of medical liability or to amend the rules on criminal liability. The paper eventually calls for adding the law to the present agenda of patient safety.</p>
19
Rebrysh, Bohdan, and Natalia Maskayeva. "International Universal Unification of the Conflict-of-Law Regulation of Cross-Border Unfair Competition." Russian Law Journal 7, no. 2 (May 30, 2019): 101–27. http://dx.doi.org/10.17589/2309-8678-2019-7-2-101-127.
Анотація:
This article puts forward that there are diverse and sound grounds preventing the universal treaty regulating comprehensively the issues of legal protection from crossborder unfair competition by substantive norms from being worked out in the near future. The development of the universal unification of the conflict-of-law rules on the law applicable to the private relations arising out of unfair competition as a possible alternative is also proposed and substantiated. The authors give some possible reasons for the absence of such a treaty and demonstrate the results that have been achieved so far in this field. The concept of the Draft of the relevant Convention is drawn up. The conclusion is made that the latter needs to be centered on the lex mercatus as a single connecting factor (due to its advantages of predictability, account of the interests of the state where the effected market is situated etc.). Furthermore, the Convention should not provide for party autonomy, should set forth the detailed rules for the legal characterization of the basic terms of the Convention, including the scope of the applicable law as well as the public policy clause and the norms on the overriding mandatory provisions.
20
Pravotorova, O. M. "FORMS OF ADMINISTRATIVE ACTIVITY OF PUBLIC ADMINISTRATION IN THE MECHANISM OF ADMINISTRATIVE LEGAL PROTECTION." Actual problems of native jurisprudence, no. 05 (December 5, 2019): 123–27. http://dx.doi.org/10.15421/391970.
Анотація:
Determined that the administrative-legal protection is an institution of administrative law, which consists of uniform rules of administrative law, whose legal influence is directed at the prevention of offenses (crime prevention) and the restoration of violated rights, freedoms and legitimate interests of individuals and legal entities through administrative tools: forms of administrative activity of public administration, administrative coercion and administrative procedures. It is determined that forms of administrative activity of public administration in the field of administrative and legal protection is a classic expression of their administrative activity in the implementation of executive and administrative activities and the provision of administrative services in order to restore or prevent violation of the rights, freedoms or legitimate interests of individuals and legal entities. At the same time, public administration entities can use the entire arsenal of forms of administration of public relations by public administration, namely the issuance of regulatory and individual administrative acts, the implementation of other legally significant actions and logistical operations. It has been found out that logistical operations to maintain and use public registers of property rights by the public administration provide for the prevention of most property rights violations, and restore the infringed property rights through the decisions of certain administrative commissions. It is emphasized that the instruments of public administrative activity include normative acts of public administration, administrative discretion in the activities of public administration and e-government. Public administration regulations differ from other acts in that they establish, modify or repeal rules of law - mandatory rules of conduct established and protected by the state. In performing its functions, the public administration in the exercise of administrative and legal protection has the opportunity to use all the most common forms of administration of public relations by the public administration, in particular, such as the issuance of regulatory and individual administrative acts, the implementation of other legally significant actions, logistical operations, etc.
21
Masalab, Anna F. "Self-regulatory organizations as legal entities of public law." Law Enforcement Review 3, no. 4 (January 16, 2020): 75–81. http://dx.doi.org/10.24147/2542-1514.2019.3(4).75-81.
Анотація:
The subject. The legal status of self-regulatory organizations based on the principle of mandatory membership was chosen as the subject of the research.The purpose of the article is to study the features of subjects of administrative law, vested with public powers, and substantiate the possibility of attribution of self-regulatory organizations with mandatory membership to legal entities of public law.The methodological basis for the study: general scientific methods (analysis, synthesis, comparison, description) as well as formal-legal interpretation of legislation and judicial acts.Results, scope of application. Two types of subjects can take part in administrative relations, as a rule: subjects performing public functions and endowed with authority for their implementation, and subjects not endowed with appropriate powers and representing an exclusively private interest. At the same time, the first group of subjects includes not only public-territorial entities, state authorities, but also organizations performing publicly significant functions.The legal definition of a legal entity does not reflect all the features of the legal status of these subjects, that is why the author refers to the concept of a legal entity of public law. Legal entities of public law have a special nature, different from legal entities of private law, since they have the right to make decisions affecting an indefinite range of persons.Conclusions. The analysis of the features of the legal entity of public law allocated in the literature (special legal nature; special social quality; special interests and will; connection with the public power; special way of creation; public-legal character of responsibility) allowed to justify that self-regulatory organizations are the kind of legal entities of public law - organizations performing publicly significant functions.
22
Zhang, Xiaohan, and Chao Wang. "Prevention and Control of COVID-19 Pandemic on International Cruise Ships: The Legal Controversies." Healthcare 9, no. 3 (March 4, 2021): 281. http://dx.doi.org/10.3390/healthcare9030281.
Анотація:
During the COVID-19 pandemic in 2020, a number of international cruise ships were infected, thereby resulting in serious public health and human rights problems. Multiple difficulties were encountered in the prevention and control of the coronavirus disease onboard ships, while rule-based international cooperation in this regard appeared inefficient and ineffective. By applying interdisciplinary methodologies, including empirical research of law, policy science, and health studies, this research reviewed the legal difficulties in the prevention and control of COVID-19 on international cruise ships and sought solutions from a policy-making and strategic perspective. We found that, apart from the inherent nature of cruise ships such as crowded semi-enclosed areas, shared sanitary facilities and limited medical resources, there are also nonnegligible legal reasons affecting the effectiveness of containment measures on board. In particular, there is ambiguity and even inconsistency of relevant international norms and domestic regulations, and some of the key rules are neither mandatory nor enforceable. We conclude by suggesting that rule-based international cooperation on this issue must be strengthened with respect to information sharing and management, a more effective supervisory mechanism, clarification of key rules over jurisdiction and distributions of obligations among the port states, flag states, nationality states, and cruise ship companies.
23
Arno, Abd Kadir. "PENYUSUNAN ANGGARAN PERSPEKTIF FIQHI ANGGARAN HUKUM EKONOMI SYARIAH." Al-Amwal : Journal of Islamic Economic Law 1, no. 1 (May 20, 2019): 30–40. http://dx.doi.org/10.24256/alw.v1i1.625.
Анотація:
In managing the budget, honesty (shidq) is a liability, which can’t be executed unless the application of the principle of budget transparency. Therefore, based on the rules then, do the transparency of the budget is mandatory. In the view of Islam, avoiding the transparency of the budget is disobedience. The application of the basic values of Islamic law in the preparation of the budget becomes extremely important in anticipating the leak. In this context the existence of fiqh budget is very urgent, because it is not just for the sake of personal interest but also the public. Therefore the parties involved in the preparation of the budget should be linked by law, so that the consequences of which can be accounted for before the courts in case of fraud
24
Vutt, Andres, and Margit Vutt. "Shareholders’ Draft Resolutions in Estonian Company Law: An Example of Unreasonable Transposition of the Shareholder Rights Directive." Juridica International 27 (September 30, 2018): 69–78. http://dx.doi.org/10.12697/ji.2018.27.07.
Анотація:
One of the measures foreseen in the Shareholder Rights Directive for enhancement of the rights of shareholders is the regulation of draft resolutions. The article addresses the central question of whether the extent of the implementation of the requirements regulating draft resolutions and their disclosure in Estonian company law has been justified. Research was conducted to analyse whether the transposition of the rules on draft resolutions derived from the directive has contributed to the attainment of the objectives set out in the directive and in other European initiatives. The main conclusions presented in the article are that, as a result of the transposition of the Shareholder Rights Directive, Estonian small limited companies have a burdensome obligation to follow the formalised rules on draft resolutions and their disclosure, which, according to the directive, were initially meant only for listed companies. Although the Supreme Court of Estonia had an opportunity to interpret the respective regulations reasonably, it has chosen a rather formal approach instead and applied the law in quite possibly the most burdensome way for Estonian companies and contrary to the aims for the directive as the source of those regulations. The authors of the article take the stance that there is a need to change the rigid rules on draft resolutions that have been forced on Estonian small companies. The present mandatory rules on draft resolutions should be applicable to listed companies only. All other public limited companies should be given an opt-in option. As for private companies, the law should clearly set out the possibility of stipulating the appropriate rules in the articles of association of the company.
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Aziz, Muhammad, Abdul Ghofur, and Niswatin Nurul Hidayati. "Regulation on the Implementation of Halal Product Assurance in Indonesia: Statute Approaches Study." Ulul Albab: Jurnal Studi dan Penelitian Hukum Islam 4, no. 2 (July 13, 2021): 209. http://dx.doi.org/10.30659/jua.v4i2.13649.
Анотація:
This research was focused on the regulation of halal product assurance implementation in Indonesia on statute approaches study and the crucial issues associated with it. In the context of providing halal product assurance implementation, regulation is the basis of legality for all elements of the state in organizing the State. Before the emergence of the Halal Product assurance (JPH) Law, there were many regulations relating to the assurance of halal products. In forming a regulation, there are crucial issues/topics that suck up a lot of public attention, so that it can influence a policy that will be ratified. The conclusions of this research included; first, there were several crucial issues and topics related to the implementation of halal product assurance in Indonesia, they were; (1) halal certification/labeling; (2) mandatory (obligation) or voluntary in halal certification; (3) criminal provisions; and (4) halal product assurance management institutions. Second, halal product assurance regulations when viewed from the Statute Approach can be analyzed using three legal principles, consisting of (1) the principle of Lex Superior Derogat Legi Inferiori concluded that all halal product assurance rules that have a high position must replace all lower halal product assurance rules. (2) The principle of Lex Specialis Derogat Legi Generali confirmed that the Halal Product Assurance (JPH) Law was a specific regulation governing the assurance of halal products. This Halal Product assurance (JPH) Law replaced the previous halal product assurance rules; and (3) the principle of Lex Posterior Derogat Legi Priori required that the halal product assurance provisions contained in the Halal Product assurance (JPH) Law replaced the existing halal product assurance rules in the previous period.
26
Hussemann, Jeanette, and Jonah Siegel. "Decision-Making and Holistic Public Defense Post-Montgomery v. Louisiana." Criminal Justice Policy Review 31, no. 6 (August 30, 2019): 886–907. http://dx.doi.org/10.1177/0887403419871601.
Анотація:
In 2012, the U.S. Supreme Court ruled in Miller v. Alabama that mandatory sentences of life without the possibility of parole (LWOP) for youth are unconstitutional. In 2016, the Court held in Montgomery v. Louisiana that the ruling in Miller should be applied retroactively. Drawing from qualitative interviews with justice actors, and individuals who were sentenced to LWOP as juveniles and paroled, this article examines the implementation of Miller-Montgomery in Michigan, the factors that influence decisions to release juvenile lifers, and their reentry process. In doing so, we focus specific attention to the role of publicly appointed defense attorneys and the application of holistic defense practices to support Montgomery case mitigation and juvenile lifer reentry. Findings indicate that institutional disciplinary and programming records, emotional wellness, statements by victims’ family members, political considerations, and reentry plans are key considerations when deciding whether a juvenile lifer should be eligible for parole.
27
Berlach, А. "INSTITUTE OF PUBLIC SERVANTS RESPONSIBILITY IN THE SYSTEM OF SERVICE LAW OF UKRAINE." Bulletin of Taras Shevchenko National University of Kyiv. Legal Studies, no. 118 (2021): 5–9. http://dx.doi.org/10.17721/1728-2195/2021/3.118-1.
Анотація:
The article is devoted to the research of the institute of responsibility of public servants in the system of service law of Ukraine. It is emphasized the importance of legal support for the functioning of the public service system, in particular the regulation of the mechanism of responsibility of public servants. It is noted that the institution of responsibility is a mandatory element of the system of every branch of law, including official, because it is this legal entity whose task is to ensure the proper implementation of the legal status of every public servant. Considering the responsibility of public servants from the standpoint of social and legal content, the author emphasizes that the views of scholars on this issue are very different, as they reflect the palette of the worldview of each individual researcher and characterize the various aspects of public relations. In a wide sense, responsibility is a legal relationship between public authorities in the person of its authorized bodies and subjects of law, for the accurate and conscientious implementation of the requirements contained in the relevant rules of law. Analyzing the scientific views of scholars on responsibility, it is emphasized that in general, the liability of public servants should be understood as a procedurally established application of coercive measures of coercive influence on a particular public person for committing an offense. It is stated that the content of the legal nature of the institute of disciplinary responsibility of public servants, in particular in the system of service law of Ukraine, which needs proper research, remains important and extremely necessary for law enforcement and human rights activities of authorized subjects. Based on the analysis of scientific achievements of local and foreign scholars on the legal system, it is emphasized that currently there are different approaches to understanding the systemic structure of legal branches, in particular some scholars remain on the views developed in our time, while others try to adapt European researchers-lawyers on the system of law on modern Ukrainian realities. As a result, the author emphasizes that we can now state that each branch of law, which we call general, special or special law, always contains a list of legal norms in the appropriate relationship and sequence and thus ensuring the ability of the subject of rule-making, law enforcement or human rights activities to achieve the desired result – to create or harmonize existing social relations, giving them the status of legal relations. Keywords: public service, service law, responsibility, legal system, general, special and special part, sanctions.
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Kanas, Vera, and Carolina Müller. "The New Brazilian Anti-Dumping Regulation: A Balance of the First Years." Global Trade and Customs Journal 12, Issue 11/12 (December 1, 2017): 462–68. http://dx.doi.org/10.54648/gtcj2017061.
Анотація:
In 2013, Brazil issued a new anti-dumping regulation: Decree 8058/2013. The new rules came under a context of enhancement of the trade remedies system, in the scope of an industrial policy that aimed to protect the domestic production against imports. Since then, Brazilian public policies changed significantly, becoming more focused on seeking new markets for exports instead of protecting the domestic market. Nonetheless, the new anti-dumping law has changed permanently the trade remedies system in Brazil. This article reviews developments in the modernization of Brazil’s anti-dumping law. What it means for companies using the law or subject to it is important. Here are the key things you need to know. First, the new anti-dumping legislation was designed to encourage full participation by the exporters, providing for a mandatory lesser duty benefit for cooperating exporters, and for several opportunities of defence. Second, the new legislation provides for a detailed administrative process, involving deadlines applicable to the interested parties and to the investigating authority, with the purpose of expediting the process. Third, although the Brazilian law provides for several kinds of reviews, some of them were not used yet. Finally, anti-dumping duties may be suspended due to public interests, normally after an administrative procedure for this end.
29
Al-Zumai, Fahad. "Comparative Study of the Legal Framework of Securities Disclosure Requirements in Kuwait and the U.S." Arab Law Quarterly 21, no. 3 (2007): 230–50. http://dx.doi.org/10.1163/026805507x226782.
Анотація:
This paper examines the regulatory framework of disclosure in Kuwait in comparison with the situation in the United States of America. It covers the theoretical arguments for and against mandatory disclosure and then engages in a regulatory analysis of the rules governing disclosure in Kuwait and the U.S. The main areas that are explored in this paper include, inter alia , the disclosure of interest; periodic and real time disclosures; and rumours and duties to disclose in both jurisdictions. Afterward, anti-fraud provisions and their role in enhancing the disclosure framework are discussed and the investigation concludes that the absence of an anti-fraud provision in securities regulation in Kuwait is undermining the efficiency of the regulatory framework of disclosure in the country. Finally, the paper concludes that regulatory reform is needed in Kuwait to fill in the gaps in the current structure and in particular the current available remedies. The scope of disclosure should also be expanded to capture all major sensitive information that needs to be disclosed to the public and the shareholders.
30
Carrillo Pozo, Luis F. "Crisis matrimoniales, imperatividad de la norma de conflicto y Derecho extranjero = Marital crisis, imperativeness of the choice of law rule and Foreign Law." CUADERNOS DE DERECHO TRANSNACIONAL 10, no. 2 (October 5, 2018): 249. http://dx.doi.org/10.20318/cdt.2018.4377.
Анотація:
Resumen: El sistema español de tratamiento de la ley extranjera se construye sobre tres pilares, el que sanciona la imperatividad de la norma de conflicto, las reglas sobre medios de prueba y la previsión de las consecuencias de la falta de prueba de tal ley. La interacción de estos pilares debe traducirse en respuestas diferenciadas según el sector del Derecho en el que nos encontremos. En los procesos matrimoniales no existe espacio para la libertad de los particulares y sí fuertes intereses públicos, lo que significa que el órgano judicial tiene que aplicar no sólo la norma de conflicto sino también el ordenamiento reclamado por ésta, investigándolo de oficio si no lo aportan los litigantes. Único condicionante es el respeto del contradictorio y la interdicción de la indefensión.Palabras clave: procesos matrimoniales, derecho extranjero, imperatividad de la norma de con-flicto, reglamentos europeos.Abstract: The Spanish system of procedural treatment of foreign law is built on three main pillars: the one which sanctions the imperativeness of the choice of law rule, the rules on means of evidence, and the forecast of the consequences of the lack of evidence of such a law. The interaction of these pillars has has to be translated into differentiated responses according to the material sector of the Law in which we find ourselves. In matrimonial proceedings there is no room for the freedom of individuals, because of the strong public interests. Consequently, this means that the judicial body has to apply not only the conflict rule, but also the regulation claimed by it, even investigating it ex officio if it has not been brought by any of the parties. The only constrains are the respect of the right to an adversarial proceeding and the interdiction of the lack of defence.Keywords: matrimonial causes, Foreign Law, mandatory application of the Choice of Laws Ru-les, EU Regulations.
31
Ananian-Welsh, Rebecca. "Journalistic confidentiality in an age of data surveillance." Australian Journalism Review 41, no. 2 (November 1, 2019): 225–39. http://dx.doi.org/10.1386/ajr_00008_1.
Анотація:
This article examines two key components of the Australian Government’s data surveillance framework and critiques their impact on journalistic confidentiality. The 2015 mandatory data retention scheme and the 2018 telecommunications industry assistance scheme have been the subjects of considerable controversy and ongoing parliamentary reviews. The combined effect of these provisions is that journalists are unable to confidently fulfil their ethical obligation to maintain source confidentiality. The article recommends targeted reforms to more explicitly and appropriately balance the public interest in journalistic confidentiality (and relatedly, democracy, public accountability and the rule of law) against law enforcement and national security objectives.
32
Monaco, Paola. "Liability for negligently issued anti-mafia certificates." Journal of Financial Crime 25, no. 1 (January 2, 2018): 210–17. http://dx.doi.org/10.1108/jfc-10-2016-0066.
Анотація:
Purpose This paper aims to analyse the different forms of liability that might apply under Italian private law to anti-mafia advisors who negligently perform their duties, with particular regards to auditors concerning the drafting of mandatory anti-mafia certificates as bidding documents for public procurement contracts. Design/methodology/approach The analysis is based on the comparative law methodology of dissociation of “legal formants”, that is, on the study of separate contributions by each element of the legal system – from black-letter provisions to judicial dicta, from scholars’ arguments to administrative practices – to the making of legal rules in a given setting. Findings Neither case law nor academic writing is abundant on this topic. Yet, it can be fairly assumed that an advisor who negligently drafts anti-mafia certificates might incur both contractual and tortious liability. Originality/value The paper investigates an area, which has so far been largely unexplored, and, thus, contributes to paving the way for a better understanding of the legal framework applicable to the cases under examination.
33
Aldag, Ole. "Due Diligence and Environmental Damages Under Rome II." European Review of Private Law 28, Issue 6 (December 1, 2020): 1231–48. http://dx.doi.org/10.54648/erpl2020074.
Анотація:
Within the European Union, the Rome II Regulation determines the applicable law on cross-border matters of non-contractual nature. The paper examines the applicable law on environmental-related tort claims against European multi-national companies utilizing production facilities in third countries, either based on active misconduct or on alleged omission of environment-related due diligence. As these types of claims are an expression of misconduct by multinational corporations conducting business abroad, particular notice will be given to the applicable law on compensation claims for environmental damages allegedly caused by negligent compliance for environmental standards of either independent or subsidiary production facilities. While doing so, its main point of interest will be whether claims against European-based companies may be governed by the law of the effective seat of the latter. Considering that Article 7 Rome II provides for a special connecting factor regarding environmental damages, the paper examines whether Rome II does justice for due diligence-related cases on the conflict of laws level and argues for a nuanced approach to localize the place of the event giving rise to such damages. Private International Law, Environmental Damages, Civil Compensation, Torts, Corporate Social Responsibility, Rome II, Mandatory Rules, Public policy
34
Kozhevnikov, Vladimir V. "THE PROBLEM OF THE RELATIONSHIP BETWEEN LOCAL LAW AND CORPORATE LAW." Vestnik Tomskogo gosudarstvennogo universiteta. Pravo, no. 39 (2021): 26–47. http://dx.doi.org/10.17223/22253513/39/3.
Анотація:
This research article, as the title suggests, is devoted to the general theoretical problem of the relationship between local legal norms and corporate norms. In the conditional first part of the study, local law norms are analysed, including from a historical perspective. Noting that the problem of local regulation has been the focus of attention of Soviet scientists (N.G. Ale-xandrov, R.I. Kondratyev, S.S. Karinsky, F.M. Leviant, L.I. Antonova), it is emphasized that local acts were originally understood as the result of rulemaking organizations, enterprises, institutions in the field of labour relations. An analysis of modern legal educational literature shows that scientists, when classifying the norms of law, either do not mention the existence of local norms of law at all, or show insufficient attention to their analysis, limiting them-selves to a few phrases. In doing so, authors often unreasonably fail to distinguish between local and departmental legal regulation or local and local legal regulation. Analyzing the types and essential features of local legal acts: their volitional content, intra-organizational character, bylaw nature, dynamism and stability, multiple application, duration of existence, compulsory for the addressees of norms, maintaining by the coercive power of the state, the author rightly states that all local acts arise by direct instruction of law, indicating that on a given issue This assertion is supported by examples of labour law and education law. By focusing on local labour law norms, the necessity of their adoption is justi-fied, and mandatory local law norms are analysed. It is thought that one of the current problems concerning local rules of law is their rela-tionship to corporate rules. It is the fact that many authors unreasonably refer to the norms of individual state organisations, i.e. local norms of law, as corporate norms. The author takes the position that corporate norms are rules of conduct established and provided by non-state organizations (political parties, public organizations, non-state institutions and enterprises, etc.) and apply to their members; they are contained in the statutes, regulations and other regulations of non-state organizations and determine the formation of these organizations, their structure, competence, rights, duties and responsibilities of their members. Moreover, the paper defends the view that corporate norms include, first, non-social cor-porate norms: technical norms; sanitary and hygienic norms; physiological norms; biological norms; second, social corporate norms: corporate customs, traditions, aesthetic, business customs, legal norms. In conclusion, it is argued that, although both local legal norms and corporate norms are intra-organisational in nature, they should be distinguished. Moreover, corporate norms, which have both technical and social aspects, should also be seen as having a legal aspect, implying the presence of corporate law norms.
35
Radyshevska, Olesya. "Europeanization of the Administrative Law of Ukraine: peculiarities of modern tectonic of mechanisms of the influence." Law Review of Kyiv University of Law, no. 1 (April 15, 2020): 150–54. http://dx.doi.org/10.36695/2219-5521.1.2020.30.
Анотація:
The article explores the contemporary forms, mechanisms and models of Europeanization of the administrative law of Ukraine in the light of it renewal as a branch of national law and legislation. It is noted that foreign scientists pay special attention to the classification of the influence of the provisions of European administrative law (in the widest sense) on the administrative law of European countries. The author analyzes the extensive classification of the phenomenon of Europeanization existing in European administrative and legal science. It is stated that Europeanization of administrative law as branch of legislation has mostly vertical, direct, obligatory, "hard", positive influence, since the boundaries of the system of sources of administrative law are being expanded, and it is the obligation of the subjects of administrative law to apply its rules already as part of national legislation. At the same time, the Europeanization of administrative law as a branch of law can have the characteristics of vertical, direct, mandatory, harmonizing Europeanization and also with horizontal influence which voluntary, indirect, selective nature, exercised by various actors ("legislative bodies" of European organizations, the parliaments of European countries, the practice of public administration and judicial institutions, experts from technical assistance projects), etc. It is concluded that the mechanisms of Europeanization from the EU legal field regarding EU Member States will differ from mechanisms towards Ukraine. However, the mechanisms of influence used by Council of Europe and OSCE among their member states in the area of administrative law are identical, since they imply the application of the rules of "soft" law, "soft" cooperation, socialization and "lessons learned". The aim of their subjects is to satisfy their legal expectations that dominate the European administrative space. These mechanisms usually are used in dialectical unity.
36
Marques de Almeida, Prof Doutor J. J., and Mestre Maria da Conceição De Costa Marques. "The Public Accounts and the Education Sector in Portugal: assumption of the legal economy, efficiency and effectiveness." education policy analysis archives 11 (November 13, 2003): 42. http://dx.doi.org/10.14507/epaa.v11n42.2003.
Анотація:
The National Accounting Plan for the Education Sector (POC - Education) is a Sector Plan for education, which follows on from the approval of the Journal of Public Accounts (OPAP), Decree-Law No. 232/97 of 3 September, the model it is based. With the approval of the POC - Education will create conditions for integrating the accounting, inventory and cost accounting in a modern public as an instrument to support decision-makers and other users of information, to remedy the deficiencies of accounting information previously experienced. As aspects inovadoresdeste plan for the sector, we highlight the cost accounting and the consolidation of accounts. The cost accounting is a mandatory system as an important management tool for analysis and cost control to education, but also the income and results of operations. With the consolidation of accounts is intended to establish a political and management culture group at the same time seeking to facilitate the comparability in time and space, and is also a factor of transparency of public information. Not expected fiscal consolidation, applying the rules only to the consolidation of financial assets.
37
Muqorobin, Ahmad. "al-zakah wa al-?aribah fi al-Fiqh al-Islami wa al-qanun al-Indunisi (Dirasah Tajribiyyah Muqaranah)." Ulul Albab: Jurnal Studi dan Penelitian Hukum Islam 3, no. 2 (April 30, 2020): 198. http://dx.doi.org/10.30659/jua.v3i2.7961.
Анотація:
Zakat is a financial system that is essential to create a balance between society, so as not to make the rich richer and vice versa.Zakat is an obligation for Muslims to get closer to Allah and to cleanse his property. While the tax is a mandatory contribution to the state charged to the public for the benefit of the government and the general public. Seeing the importance of zakat and tax as an instrument of income of a country, then the purpose of this study was to determine the legitimacy of a combination of zakat and taxation in Islamic law, and its application in Indonesia, whose population includes Muslims and non-Muslims. This research uses descriptive analysis approach and simultaneously inductive approach in explaining the rules of zakat and tax system and to clarify the differences between them, then explain the application of zakat and taxation in Indonesia, for increasing the zakat payment.
38
Draetta, Ugo. "The Transnational Procedural Rules for Arbitration and the Risks of Overregulation and Bureaucratization." ASA Bulletin 33, Issue 2 (June 1, 2015): 327–42. http://dx.doi.org/10.54648/asab2015025.
Анотація:
Arbitration is widely recognised as an autonomous legal order. As such, it has its own substantial and procedural rules, which are also transnational in nature. With regard to the procedural rules, a set of transnational procedural rules of soft law has emerged, which are meant to be applicable to the arbitration proceedings with the only limit of the mandatory application of the public order provisions of the lex arbitri. This set of procedural rules has been sometimes referred to as the lex mercatoria processualis. It consists of the rules of procedure of the lex arbitri, the arbitration rules of the various arbitration institutions and a number of guidelines, codes of conduct and similar productions of soft law which are being issued to an increasing extent with the stated intent of providing some guidance to arbitrators in the exercise of their discretion as to the identification of the applicable procedural rules. With reference to the last set of procedural rules, there appears to be a serious risk that the international arbitration community has placed itself on a slippery slope toward overregulation and unnecessary bureaucratisation. Already the well known 2010 IBA Rules on the Taking of Evidence in International Arbitration, though useful under many respects, are often criticized with respect to their rules on document production which seem to be predicated on the false assumption that a document production phase is a must in international arbitration. However, the concerns about overregulation and bureaucratization have been recently reinforced as a consequence of the issuance of the 2013 IBA Guidelines on Party Representation in International Arbitration. They cover a variety of critical issues, suggesting, however, in most cases, rules that are either unnecessary or unduly limiting the discretionary powers of the arbitrators. For example, the Guidelines concerning the remedies available to arbitrators in case of misconduct by the parties or their counsel do not add anything to the arsenal of measures previously available to the arbitrators. They, however, appear to suggest that giving advance notice to the parties and a right to be heard are necessary prerequisites for the adoption of such measures - an obligation that arbitrators do not have under current standards.
39
Kovalev, Nicole, and Johann Koeppel. "Introduction to the Environmental Impact Assessment System and Public Participation in the Russian Federation." Journal of Environmental Assessment Policy and Management 05, no. 03 (September 2003): 321–38. http://dx.doi.org/10.1142/s146433320300136x.
Анотація:
The Environmental Impact Assessment (EIA) system in the Russian Federation has an extensive set of rules, the main ones are the Assessment of the Environmental Impact (OVOS) of a project and the State Environmental Review (SER). The SER is designed as an investigation of both a project and of its OVOS by an independent expert commission, which is appointed by the federal and regional environmental bodies. The decision of the commission is binding. In addition, a Public Environmental Review (PER) can be conducted by NGOs and recognised by the state. A mandatory component of the EIA in Russia is public participation. The process of public participation is regulated by Russian legislation (for example the Land Code, the OVOS guidelines and autonomous regional laws) and can take various forms. All these opportunities are established on paper; in reality, they are not always taken into account. There are a number of case studies used to observe the extent to which the public has an impact on environmental decision-making. Selected cases include examples in which the public was passive, in which it undertook limited activities, and in which participation was strong and projects were improved or stopped.
40
Tshibende, Louis-Daniel Muka. "Contract Law and Smart Contracts: Property and Security Rights Issues." European Review of Private Law 26, Issue 6 (December 1, 2018): 871–83. http://dx.doi.org/10.54648/erpl2018059.
Анотація:
Abstract: Considering that the internationality of a contract as well as its national character opens up opportunities for the contracting parties, particularly in the domains of dispute settlement mechanisms and applicable Law that they can eventually opt for, the present contribution analyses legal issues resulting from the fact that parties are nevertheless submitted to an obligation to comply with mandatory provisions and public policy rules depending on the location of some key elements of their agreement. This applies, even though it is about smart contracts and blockchain technologies. This article focuses on property and security rights issues (: defective title, informational defects and viruses … ) in the context of the Civil Law tradition. Résumé: Considérant que le caractère international d’un contrat, aussi bien que son caractère national, ouvrent des opportunités pour les parties contractantes, particulièrement dans les domaines de mécanismes de résolution des litiges et de loi applicable qu’elles peuvent éventuellement choisir, la présente contribution analyse les questions juridiques résultant du fait que des parties sont néanmoins tenues de respecter des dispositions obligatoires et de règles de politique d’intérêt général dépendant du lieu de certains éléments-clés de leur contrat. Ceci s’applique même s’il s’agit de contrats intelligents et de technologies de la blockchain. Le présent article se concentre sur des questions de droits de propriété et de sécurité (: défectuosité, défauts informationnels et virus … ) dans le contexte du droit civil traditionnel.
41
Draga, Lisa. "On equating ‘mays’ with ‘musts’: When can a discretionary power be interpreted as a mandatory one?" South African Law Journal 138, no. 3 (2021): 649–81. http://dx.doi.org/10.47348/salj/v138/i3a9.
Анотація:
In this article I investigate when the otherwise permissive term ‘may’ in an empowering provision can be interpreted as imposing a duty on the recipient of that power to act. In the first part, I examine our courts’ pre-democratic approach to answering this question through an analysis of pre-democratic judgments. In particular, I scrutinise certain factors that the courts have traditionally relied on in this regard. Thereafter, I consider the present-day rules of statutory interpretation and its application to the may/must question. Next, I analyse the Constitutional Court’s approach to determining when the use of ‘may’ to confer a power through statute can be interpreted as requiring the power be exercised. I undertake an analysis of a dissection of relevant Constitutional Court judgments. These judgments are dissected for purposes of illustrating the continued relevance of the traditional factors that were employed before democracy. Finally, I focus on the may/must question in the typical public-law context of this interpretative exercise. I examine potential grounds of review where the holder of the power has failed or refused to execute a duty attached to permissive language. I also consider separation-of-powers concerns that may likely arise.
42
Gusarov, Serhii. "Certain Aspects of State Service Reform." Journal of the National Academy of Legal Sciences of Ukraine 27, no. 1 (March 27, 2020): 14–25. http://dx.doi.org/10.37635/jnalsu.27(1).2020.14-25.
Анотація:
The study of the issues of civil service reform in Ukraine in the current conditions of development of Ukrainian society and the state is an extremely relevant subject and requires appropriate research. The author aims to analyse the most resonant reform measures in the civil service, which were recently initiated by the government and received mixed reviews, in particular, the announced redundancy in the staff of civil servants and the introduction of a contract form of civil service, as well as to offer scientifically sound proposals for improvement of appropriate measures. In the work with the use of general scientific and special methods of scientific knowledge (dialectical, Aristotelian, comparative law, system analysis) the legal bases and scientific sources on redundancy of staff and contractual form of employment are considered; the provisions of the national labor legislation were compared with the provisions of the national legislation on the civil service, which provide for the rules of staffing cuts among civil servants, including guarantees of their rights upon dismissal on appropriate grounds; the provisions of the national legislation concerning the rules of application of contracts upon appointing civil servants are investigated. The conclusion is made: 1) on the need for appropriate revision of the Law of Ukraine "On Civil Service"; 2) on the expediency of creating new productive jobs in various sectors of the national economy, where redundant civil servants will be sent after retraining; 3) that any reforms of society and public administration must be carried out subsequent to an in-depth study of public opinion, analysis of possible negative consequences, development and implementation of compensatory mechanisms. It is emphasized that it is mandatory to involve scientists, experts-practitioners, employers, and representatives of public, in particular trade unions, in the process of developing reforms in civil service.
43
Wadud, Zia, Sheikh Mokhlesur Rahman, and Annesha Enam. "Face mask mandates and risk compensation: an analysis of mobility data during the COVID-19 pandemic in Bangladesh." BMJ Global Health 7, no. 1 (January 2022): e006803. http://dx.doi.org/10.1136/bmjgh-2021-006803.
Анотація:
IntroductionConcerns have been raised about the potential for risk compensation in the context of mask mandates for mitigating the spread of COVID-19. However, the debate about the presence or absence of risk compensation for universal mandatory mask-wearing rules—especially in the context of COVID-19—is not settled yet.MethodsMobility is used as a proxy for risky behaviour before and after the mask mandates. Two sets of regressions are estimated to decipher (any) risk-compensating effect of mask mandate in Bangladesh. These include: (1) intervention regression analysis of daily activities at six types of locations, using pre-mask-mandate and post-mandate data; and (2) multiple regression analysis of daily new COVID-19 cases on daily mobility (lagged) to establish mobility as a valid proxy.Results(1) Statistically, mobility increased at all five non-residential locations, while home stays decreased after the mask mandate was issued; (2) daily mobility had a statistically significant association on daily new cases (with around 10 days of lag). Both significances were calculated at 95% confidence level.ConclusionCommunity mobility had increased (and stay at home decreased) after the mandatory mask-wearing rule, and given mobility is associated with increases in new COVID-19 cases, there is evidence of risk compensation effect of the mask mandate—at least partially—in Bangladesh.
44
Turischeva, Natalia Yu. "The imperativeness and dispositivity of the electoral process in the context of the value approach to the realization of electoral rights." Gosudarstvo i pravo, no. 10 (2021): 117. http://dx.doi.org/10.31857/s102694520017266-3.
Анотація:
The article deals with a complex of problems of modern state-legal reality, the study of which is due to the transformation of the content of traditional methods of legal regulation of electoral relations. Recent changes in the electoral legislation indicate not only the intersection of imperative and dispositive principles in the electoral process, but also the replacement of one method of regulation by another. A significant role in the formation of new electoral procedures is assigned to election commissions, acting as subjects of the creation of “soft” law, whose activities reflect modern socio-cultural processes and a new understanding of public administration. Special attention is paid to the nomination and registration of candidates as the most value-oriented stage in the entire electoral process. Based on the analysis of the legal grounds for the registration of candidates, the author comes to the conclusion that the legislator mediates the forms of implementation of the passive electoral right through certain elements of direct or indirect participation of voters who implement their active electoral right. The development of the main institutions of modern Electoral Law is based on the use of the potential of advanced digital technologies aimed at expanding the rights of participants in the electoral process. The new rules defining the mechanism for the implementation of subjective electoral rights should receive mandatory regulation in the text of the law.
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Balakarieva, Iryna, Olena Marchenko, and Nadiia Pysarenko. "Typical and exemplary cases in administrative proceedings: features and special aspects of consideration." Problems of Legality, no. 153 (June 16, 2021): 81–91. http://dx.doi.org/10.21564/2414-990x.153.227846.
Анотація:
Currently, the institute of typical and exemplary cases is represented by the norms of only one of the national procedural laws, namely, the norms of the Code of Administrative Proceedings of Ukraine. This is completely justified because the probability of similar legal disputes between individuals and subjects of authoritative powers is extremely high. Subjects of authoritative powers apply the same rules of law to a wide range of persons. Such application may be based on misunderstanding of general mandatory rules resulting in violation of the rights of individuals or restriction of these rights implementation. Besides, in most cases, the legal disputes to be considered under the rules of administrative proceedings need to be decided as soon as possible. Referring to the institute of typical and exemplary cases makes it possible to ensure the necessary rapid decision-making: the decision at exemplary case gives reference points in considering typical cases. In other words, the judge in fact receives a "competent recommendation" according to which he is obliged to decide a case characterized by typical features. Taking this into account the authors consider that according to the national legislator, the institute of typical and exemplary cases is aimed, inter alia, at ensuring the unity of judicial practice. The paper presents the analysis of the provisions of procedural law, the study of corresponding court decisions. Taking this into consideration an attempt is made to identify to what extent the implementation of the institute of typical and exemplary cases has influenced the unification of Ukrainian courts judging the public-legal disputes that can be considered the most common.
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Swinbank, Alan. "Like Products, Animal Welfare and the World Trade Organization." Journal of World Trade 40, Issue 4 (August 1, 2006): 687–711. http://dx.doi.org/10.54648/trad2006035.
Анотація:
Some production processes, such as organic or animal welfare friendly systems, can become embedded as credence characteristics in consumer goods. Market mechanisms, involving voluntary labelling schemes and accreditation systems might be developed to ensure the delivery of many of the credence characteristics sought out by consumers. However, when credence characteristics capture ethical concerns then voluntary labelling may be insufficient, as it is the production as well as the consumption of the product that causes offence. Thus a ban on unacceptable production methods may emerge as the political response. Any attempt to extend the ban to imported products, in the form of mandatory labelling, or a ban on imports not produced in the manner laid down in the home jurisdiction, will potentially fall foul of WTO rules. GATT’s Article XX does provide for some general public policy exceptions, but animal welfare is not one, and there is a strong presumption against the recognition of process methods for differentiating between goods. It is argued that there are circumstances in which mandatory labelling of imports could be justified, and these are spelt out. Both producers, and lawmakers, need to respect consumer requirements. A producer-focused unwillingness to disentangle “like products”, because of undue deference to the theory of comparative advantage, will not enhance the WTO’s authority.
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Alemanno, Alberto. "The HOB–vín Judgment: A Failed Attempt to Standardise the Visual Imagery, Packaging and Appeal of Alcohol Products." European Journal of Risk Regulation 4, no. 1 (March 2013): 101–12. http://dx.doi.org/10.1017/s1867299x00002877.
Анотація:
National rules of a EEA State, such as those at stake in the present judgment, under which a State monopoly on the retail sale of alcohol, may refuse to accept for sale alcoholic beverages that are lawfully produced and marketed in another EEA State on the grounds that the labelling of the products contains loaded or unrelated information, are in breach of Article 18 of Directive 2000/13/EC (‘the labelling Directive’ or ‘Directive’), and cannot be justified by a public health objective. Another rule requiring alcoholic beverages to carry stickers stating that their contents are alcoholic, in addition to the mandatory indication of the actual alcoholic strength by volume, ‘cannot be considered effective’ if it has been adopted without regard to the notification procedure laid down in Article 19 of the labelling Directive. However, individuals and economic operators who have been harmed by the incorrect application of the Directive may rely on the free movement of goods in order to render the State liable for the breach of EEA law, regardless of whether such a directive is being made or has been made part of the legal order of Iceland, since it has been incorporated in the EEA Agreement. Failure to notify the second rule in accordance with the Directive qualifies as a sufficiently serious breach of EEA law. Such a breach entails State liability if the national court finds a direct causal link between the breach of the obligation resting on the State and the damage sustained by the injured party (author's headnote).
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Dewa Gede Ananta Prasetya, Anak Agung Sagung Laksmi Dewi, and Ni Made Puspasutari Ujianti. "Tinjauan Yuridis Industri E-Commerce dalam Melakukan Kegiatan Transaksi Online." Jurnal Konstruksi Hukum 3, no. 2 (March 29, 2022): 365–70. http://dx.doi.org/10.55637/jkh.3.2.4838.365-370.
Анотація:
This research is motivated by the development of information technology which is currently changing people's lifestyles. With the internet, it is easier to transact online, especially with online shopping applications. The online trading industry has had a rapid impact with the public shopping culture. The two problems found in this research are how the e-commerce legal arrangements in Indonesia and the legal consequences of not implementing the e-commerce industry in accordance with Law Number 7 of 2014 concerning Trade. The normative research method is a data collection technique in this research, by processing data sourced from the existing legal rules and related legal materials. From the results of this research, it was found that in the applicable law online trading, it is mandatory to hold permits, complete and accurate information for consumers. In this case, it is concluded that the e-commerce industry must pay close attention to legal regulations related to the provision of goods and services, lest consumers suffer losses due to the existence of the e-commerce industry, by sending inappropriate goods. It is likely that consumers will lose.
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Calvo Caravaca, Alfonso-Luis, and Javier Carrascosa González. "Lex mercatoria and private international arbitration = Lex mercatoria y arbitraje privado internacional." CUADERNOS DE DERECHO TRANSNACIONAL 12, no. 1 (March 5, 2020): 66. http://dx.doi.org/10.20318/cdt.2020.5180.
Анотація:
Abstract: The “New Lex Mercatoria” is not a “legal system” or a defined set of rules, but a “method”. In this sense, the New Lex Mercatoria consists of giving authorization to the courts and/or arbitrators to assess different legal materials regulating international trade; following that, they will extract the “most appropriate rules” to solve the litigation. It is, therefore, a method to achieve adequate decisions in international trade (Method of Decision-Making). Thus, the arbitrator is prevented from applying a single national Law, which is exactly what the parties intended to avoid at all costs and the reason why they chose the New Lex Mercatoria. In other words, it can be affirmed that the methodological approach to the New Lex Mercatoria is the most operative, useful and complete, as well as the one that enables us to develop a metacriticism of the New Lex Mercatoria as a source of Law in international trade.Keywords: Arbitration, efficiency principle, general principles of Law recognized by civilized Nations, general principles of private international law, Globalization, international contracts, international trade, delocalization, mandatory rules (in international trade), New Lex Mercatoria, “Norsolor syndrome”, Private International Law, Public Policy, sources of Law, Uniform Law.Resumen: La Nueva Lex Mercatoria es un “método” y no un “ordenamiento jurídico” ni un conjunto definido de reglas. En esta acepción, la Nueva Lex Mercatoria consiste en una habilitación ofrecida a los tribunales y/o a los árbitros para que éstos valoren distintos materiales jurídicos reguladores del comercio internacional y, tras ello, extraigan las “normas más adecuadas” para solventar el litigio. Es, por tanto, un método para alcanzar decisiones adecuadas en el comercio internacional (Method of DecisionMaking). De ese modo, se evita que el árbitro acabe por aplicar una concreta Ley estatal lo que constituye, significativamente, eso mismo que la elección de la Nueva Lex Mercatoria por las partes quiere evitar a toda costa. En otras palabras, puede afirmarse que la acepción metodológica de la Nueva Lex Mercatoria es la más operativa, la más útil, la más completa y la que permite desarrollar, precisamente, una metacrítica de la Nueva Lex Mercatoria como fuente del Derecho de los negocios internacionales. Palabras clave: Arbitraje, comercio internacional, contratos internacionales, Derecho Internacional Privado, Derecho Uniforme, deslocalización, fuentes del Derecho, Globalización, normas imperativas (en el comercio internacional), Nueva Ley Mercatoria, orden público, principios generales de Derecho Internacional Privado, principios generales del Derecho reconocidos por las naciones civilizadas, “síndrome Norsolor”.
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Luneva, E. V. "Differntiation between Rational and Sustainable Use of Natural Resources in Land Law." Lex Russica, no. 12 (December 16, 2020): 54–66. http://dx.doi.org/10.17803/1729-5920.2020.169.12.054-066.
Анотація:
The rational use of natural resources in land law is understood as the increase in the ecological efficiency of the use of natural resources, including the quality improvement. the paper identifies the types of public relations concerning the rational use of natural resources in land law: 1) improvement of the state of the natural environment and the ecological situation in general; 2) improvement of the quality of land as a separate natural resource and a natural object; 3) land reclamation; 4) land restoration; 5) additional reproduction of land fertility; 6) other relationships aimed at improving the sustainability of environmental systems of which land is a part. On the example of Part 2 Art. 8.7 of the Administrative Code of the Russian Federation, Para. 2 of Art. 45, Para. 2 of Art. 46 and Para. 1 of Art. 47 of the Criminal Code of the Russian Federation the paper shows the significance of differentiation between rational and sustainable use of natural resources in land law for law enforcement. The proposed differntiation leads to overcoming legal uncertainty when bringing to administrative responsibility and forced termination of rights to land plots for failure to fulfill mandatory measures for the land improvement. The author substantiates the supression from the objective side of the administrative offense provided by Part 2 of Art. 8.7 of the Administrative Code of the Russian Federation, of the failure to act on mandatory improvement of lands. The reasons for the proposed change of the rule include: 1) the absence in law enforcement practice of the facts of bringing to administrative responsibility under Part 2 Art. 8.7 of the Administrative Code of the Russian Federation for failure to comply with mandatory measures to improve lands; 2) recognition by courts in most cases of the design of part 2 of Art. 8.7 of the Administrative Code of the Russian Federation as a formally defined crime; 3) the study of Part 2 Article 8.7 of the Code of Administrative Offences of the Russian Federation in the science of Land Law exclusively in the context of the failure to implement mandatory measures to protect land and soil; 4) only social relations in the field of preservation and protection of land against negative impact can be the object of an administrative violation.