Juridical Tribune - Tribuna Juridica

21-26

Authors: PhD. student Viorel BĂNULESCU

Ensuring a high level of protection of consumer rights represents a concern of the European Union. The consumer is, in the broadest sense, the person who purchases goods and services. The policy of consumer protection is based on the presumption of vulnerability of the individual in relation to the professionals.

39 - 47

Authors: Lecturer Cristinel GHIGHECI

Although in German and in Spanish legal systems there are no express provisions with regard to the criminal negligence (culpa), this has not hindered the legal doctrine and jurisprudence to thoroughly analyse this form of guilt. This made it possible to qualify as intentional offences some deeds which in our legal system are considered to be committed with conscious negligence (involving foresight). The difficulty to distinguish between indirect intention (dolus eventualis) and conscious negligence (luxuria) has nonetheless determined Spanish courts to ask the legislator to provide a clear definition of indirect intention, which could be an additional argument with respect to the weaknesses entailed by such a legal approach.

64 - 73

Authors: Assistant professor Oana ADĂSCĂLIȚEI

The salvage law regime is mainly set forth in the 1989 Salvage Convention that is complemented by a series of private initiatives of the salvage industry. The most discussed issue from the point of view of amending the actual international regulation is whether the salvage operations are in fact able to protect the environment. The salvage industry has initiated proposals in order to amend the 1989 Salvage Convention. In this context, it is important to bear in mind that no other international maritime salvage convention has previously taken into consideration the problem of the protection of the environment. From this perspective the actual regulation represents a fundamental change. Alongside with traditional subjects of salvage, protection of the environment was recognized by the 1989 Salvage Convention not as an independent subject but related to the salvage of the ship and its cargoes. Two articles, namely Article 13 (b) which refers to an “enhanced award for the salvor” and respectively, Article 14 deemed as “a safety net” were special designed to encourage the salvor to intervene in circumstances where damages to environment occurs. The Salvage Industry has advanced a proposal for the Convention’s revision meant to reflect in a more adequate way the importance of the salvage services’ contribution to the environmental protection. It is often reminded that this Convention is a result of the so called “Montreal Compromise” agreed by the Comite Maritime International in 1981, which has balanced the interests of all actors involved in the maritime salvage. Starting from this aspect, the purpose of the hereby paper is to analyze the Convention’s text parallel to proposals for its revision.

97 - 109

Authors: Associate professor Howard CHITIMIRA; Senior lecturer Tapiwa Victor WARIKANDWA

Estoppel is generally aimed at promoting equity and fairness in litigation by preventing a person (asserter) from resiling or asserting something contrary to what was implied by a previous action, conduct or statement of that person or by a previous pertinent judicial determination regarding such action, conduct or statement. Accordingly, issue estoppel could be defined to include instances where a person is prevented from relitigating or raising a particular issue in a cause of action that was previously decided by a final judgement of a competent court between the same parties in future cases that have a different cause of action involving such parties. In other words, res judicata prevents the re-litigation of a dispute that was previously decided by a final judgement of a competent court between the same parties (idem actor) or persons (eadem persona) for the same relief, thing or right (eadem res) on the same ground or same cause of action (eadem causa petendi) in future cases involving such parties or their privies. Issue estoppel and res judicata are closely interrelated. For instance, both issue estoppel and res judicata have similar requirements. Nonetheless, issue estoppel and res judicata are relatively different in their application. Accordingly, issue estoppel may only be employed as a defence in appropriate instances where it is justifiable for the court to dispense with the strict application of the requirements of res judicata. Having said this, it must be noted that issue estoppel and res judicata have been confusingly and inconsistently employed in many South African cases to date. Such confusion is mostly found in relation to the relaxation of the three-fold requirements of res judicata and the application of issue estoppel. Given this background, this article exposes certain challenges that are associated with the practical enforcement of issue estoppel in South Africa with reference to Prinsloo NO v Goldex 15 (243/11) [2012] ZASCA 28 (28 March 2012).

128 - 138

Authors: PhD. Hamed ALAVI

Maritime industry has deep roots in Europe. International ports and Inland water ways are in use by European merchants in the course of their trade all along the history. Formation of the European Union and Single European Market has increased the importance of maritime transport even more than before. Currently, industry is regulated at the Union level with body of law which intends to create a safe and predictable business environment for European and foreign enterprises. However, shared nature of the EU with her Member States in regulating Maritime Transport has created a big question mark for many external parties as well as European stack holders of Maritime industry. The question is who can represent EU maritime industry externally and where to draw the limits of Union and Member States Competencies in this industry? At the midst of the second decade of 21th Century, still many international businesses and even foreign governments wonder about limits of external competencies of the EU in maritime industry. Such confusion creates trouble for foreigners and even Europeans in determining where should they referee their matters to the Commission and where should they approach Member States? In this paper, author tries to answer above mentioned question by scrutinizing external and internal challenges facing the EU about its competencies to represent maritime industries outside of her boundaries. Paper is divided into five main sections. After introductory comments, second part will discuss maritime policy and its regulation in the EU. In third part with particular focus on the EU-IMO relations, paper will analyse external challenges facing the Union in representing her maritime industry in international organizations. Forth part will take a look at internal challenges and regulatory limits which affect the extremal representation of maritime industry by the Union. Final part is dedicated to concluding remarks.

148 - 164

Authors: Associate professor Rrustem QEHAJA; PhD. student Arbnor AJETI

The right to appeal as one of the fundamental human rights is foreseen by international legal acts and domestic legislation. In this scientific paper we have handled the right to appeal under article 6 (1) of the European Convention on Human Rights and Kosovo legislation, with special emphasis on contested procedure by including the appeal against judgment and the appeal against ruling, the grounds of appeal against judgment and limitation of appeal grounds against several judgments. All those abovementioned matters are the main object of review in this scientific paper. Handling the right to appeal against the first instance court judgment is important also due to the fact that in Kosovo according to the new Law on Courts as a competent court to review and decide on appeal submitted by the appellant is the Court of Appeals as a second instance court. In this scientific paper we have used normative, deductive, descriptive methods. At the end of this scientific paper there are conclusions in relation of the right to appeal with special emphasis on contested procedure.

174 - 191

Authors: Md. Zubair Kasem KHAN

It is an undeniable fact that, environment annihilation and the armed conflicts are like two sides of the same coin and thus can no way be averted the former effects in case of the existence of later cause. Out of this realisation, a number of International Conventions and International Humanitarian laws have developed over times to protect or reduce environment destructions during warfare. Hence, this paper has penned to weigh up carpingly the adequacy and efficacy of the laws of armed conflicts for safeguarding the environment from possible annihilations that occur during warfare of international character. Further to note that, the present paper will not focus on provisions pertaining to environmental protections during war, under international legal instruments that deals with arms limitation, arms proliferation or any other laws addressing jus ad bellum. In other words, the current study will restrict itself to examine only the protection of environment in jus in bello of international character.

212 - 222

Authors: Associate professor Narcis Teodor GODEANU

The study aims to analyze the amendments made by the Administrative Code to the central specialized administration, in general and to the Ministry of National Education in particular. The adoption of the Administrative Code is a legislative event that will undoubtedly influence the evolution of the central, local and local public administration in general and of each of its constituent authorities in particular. Last but not least, it will bring benefits to the work of the state and the lives of citizens. A special analysis will give direct influence to the Ministry of National Education, given the significance of the public service it manages, that of education, in all its forms permitted by the Constitution: state, private and confessional. The way in which this central specialized authority achieves its competence influences not only the present, but also the future of a nation, through the institutionalized forms of education, preparing future generations.