Juridical Tribune - Tribuna Juridica

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Authors: Professor Cornelia LEFTER

The present study tries to identify the relationship between arbitration (commercial arbitration) and the primary and secondary rules of EU law. Through a systemic analyze of community doctrine and jurisprudence there will be identified the points where the arbitration procedure interferes with regulations of EU law and which are the perspectives to change these rules.

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Authors: Professor Ana Maria GRĂMESCU; Lecturer Mihaela AGHENIŢEI

Technical expertise is a research, interpretation and elucidation of situations actually using scientific data. Starting with a brief history of the sample with technical expertise, this paper details the role of information and scientific capacity of technical expert / specialist in explaining and arguing circumstances which have led to a state of affairs which belongs to civil or criminal. The author highlights the multitude of problems whose nature is beyond the concern of a science, expertise gained interdisciplinary - called complex expertise examination.

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Authors: Associate researcher Claudiu Ramon BUTCULESCU, Ph.D.

Articol 1 - Arbitration’s perspectives in the light of European Union regulations Autor: Professor Cornelia LEFTER Rezumat Descarcare articol Articol 2 - Some considerations regarding the legal responsibility and the social responsibility Autor: Lecturer Diana Anca ARTENE Rezumat The judicial responsibility is acknowledged in the judicial doctrine2, as being ‘the starting point’ of the entire social responsibility, position that continues to have from ancient times until today, thus providing an expression of Law on its most concerted form, which reflect the stage of evolution of the entire social life. Expressing forms and realities of social life, both values and norms are ideal standards of conduct, perceived as individual requirements by each member of society3. The human action enforces the compliance of certain rules and its subordination of certain goals and interests, according to a system of principles and criteria; this is because the individual lead his existence in a relational system with others, a system characterized by extensive interactions and interdependencies. In any society may appear different types of conduct, whose broad includes those conformist, innovative, as well as those non-conformists, escapist or deviant. As full integration of the individual in society, legal norms are not an exclusive element; these are the foundation of a set of rules for the most various types. The institution of social responsibility arises precisely in this way, representing a higher level of integration of the individual in the society. Cuvinte-cheie: legal responsibility, social responsibility, accountability, legal provision. Clasificare JEL: K10, K42 Descarcare articol Articol 3 - Considerations regarding law as an instrument of communication Autor: Associate researcher Claudiu Ramon BUTCULESCU, Ph.D. Rezumat This paper tackles the possibility of envisioning law as an instrument of communication, using systemic and informational models. The effects of legal communication have a profound influence on the evolution of the system of law and also on national legal cultures. The means through which law is communicated, as well as the analysis of the information that is transmitted, along with the legal noise generated by the poor understanding of legal norms, are briefly discussed in the paper. In this direction, legal linguistics are analyzed, especially the phrasing of legal norms, with regard to syntax, morphology, phonetics and semantics, as well as their influence on the Romanian legal system. Beside legal linguistics, the analysis of legal semiotics within the communication of law is also discussed, as the system of law is considered an abstract and analytical normative system, which uses texts and codes. Careful analysis of legal communication, using the concepts of legal linguistics and legal semiotics could help alleviate the effects of the faulty communication of law and enhance the understanding of legal norms by the general public. .

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Authors: Lecturer Diana Anca ARTENE

The judicial responsibility is acknowledged in the judicial doctrine2, as being ‘the starting point’ of the entire social responsibility, position that continues to have from ancient times until today, thus providing an expression of Law on its most concerted form, which reflect the stage of evolution of the entire social life. Expressing forms and realities of social life, both values and norms are ideal standards of conduct, perceived as individual requirements by each member of society3. The human action enforces the compliance of certain rules and its subordination of certain goals and interests, according to a system of principles and criteria; this is because the individual lead his existence in a relational system with others, a system characterized by extensive interactions and interdependencies. In any society may appear different types of conduct, whose broad includes those conformist, innovative, as well as those non-conformists, escapist or deviant. As full integration of the individual in society, legal norms are not an exclusive element; these are the foundation of a set of rules for the most various types. The institution of social responsibility arises precisely in this way, representing a higher level of integration of the individual in the society.

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Authors: Professor Sulejman AHMEDI; GjulsumeSULEJMANI

The liberal professions today in many countries make a substantial contribution to provide high quality provisions in the field of “social goods” as health and judicial services, well in general public services for the protection of citizens' rights and economic prosperity. The liberal professions are a component of every democratic community and a significant potential to increase employment and gross domestic product of each countryGDP. In this thesis we have presented the normative of the European Commission for liberal professions, their service offering, organization of the work, supervision and ensuring the quality of competent state institutions. The unitary concept of "liberal professions" in some EU member countries is not used, but the system of the respective professions with their social problems and their solutions can be found in every EU country. Liberal professions even though many states have evolved and now they have an important role in the classification of the professions, however in many developed countries still encounter these professions as closed systems, to maintain great privileges for its members in order modern efforts to increase competition in these sectors have faced serious resistance. Recently, the limitations in this field have been increasingly criticized for their consequences anti corruption related and lack of legitimacy of the European Commission, namely the Organization for Economic Cooperation and Development -OECD. On the base of group work, the Commission has highlighted specific lines of acting in favor of convenient entrepreneurial ambient for them who perform liberal professions in the above mentioned fields. The Examination of the concerned issue will be based on a multi-dimensional approach, using all typical methods of judicial, social researches, especially will be used the comparative, analytical, statistical, normative methods, based on the literature relevant to the subject, and other judicial acts.

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Authors: Ph.D. Olimpia-Monica MATIAȘ

So far, the European Union adopted a Directive on firing any individual content to regulate only matters of collective redundancies due to the social implications that occur usually in case of collective dismissals and, simultaneously, their potential conflicts. Directive no. 98/95/EC of 20 July 1998 on the approximation of the laws of Member States relating to collective redundancies was adopted by the Council of the European Union since it was necessary to grant greater protection to workers in the event of collective redundancies. The provisions of Directive no. 98/59/EC of 20 July 1998 on the approximation of the laws of Member States relating to collective redundancies have been transposed into national law by the Romanian Government Emergency Ordinance no. 55/2006 amending and supplementing the Labour Code so that in this case no question of direct application of Community rules, but can not disregard its interpretation by the European Court of Justice.

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Authors: Ph.D. student Monika MEÇA

The selection of the thesis was generally motivated by the lack of legal treatise focused in the arguments of Administrative Court importance in Albanian Judicial system as a new judicial structure, whose role would be to check the legality of decisions of the state administration with the aim to guarantee effective protection of human rights and legitimate interests of private persons through a regular, conform, fast and reasonable judicial process. The aim of this study is to describe the institutional steps taken from Albanian Government in administrative justice evolution, enormous differences between the administrative law before and after 1990, and the impact of European Court of Justice case law and EU law in the Albanian legal reforms in administrative justice. By analyzing the development of the administrative law in Albania is highlighted that the factors which influenced the transformation processes of this branch of law are the level of political culture, the heritage of the paste and the European Union , which has long been engaged in direct support for the modernization of public administration in Albania . In conclusion studying and analyzing the recent reform undertaken in the establishment of administrative court in Albania is necessary to make an evaluation of the impact of this reform in amending the legal framework for administrative procedures and adoption of a new Code of Administrative Procedure..

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Authors: Senior Lecturer Amalina AHMAD TAJUDIN

This paper analyses the Belgium Supreme Court decision of Scafom International BV v. Lorraine Tubes S.A.S. The case involved a contract of sale of volatile goods ie steel tubes whereby a fixed-price contract caused it to be unenforceable because of the 70% market price increase just before the goods were delivered to the buyer. While the seller requested for renegotiation, for a higher contract price, the buyer refused to come to terms with the former. The court, by virtue of the United Nations sales law, held that renegotiation was the appropriate remedy in such a situation. In addition, the paper tests the different possible outcomes of this decision under the English Sale of Goods Act 1979, as well as the US Uniform Commercial Code. The finding of this test proves that these two sales laws would have tackled the issue of volatile market differently from that of the United Nations

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Authors: Associate Professor Pankaj Kumar GUPTA; Research Scholar Singh SHALLU

Investors now started considering corporate governance as very essential factor before investment especially in view of the unstable environment in the securities market. It is considered that good corporate governance inspires, strengthens and maintains investor’s confidence by ensuring company’s commitment to higher growth and profits. Corporate Governance has become a major concern for global economies particularly the transition world. Sound corporate governance is extremely important for transition economies for creation of the key institutions, the private corporations, which drive the successful economic transformation to a market based economy, effective allocation of capital and development of financial markets, attracting foreign investment and making a contribution to the process of national development. The Corporate Governance issue has emerged primarily because of the growing importance of corporations in the national economies and their interaction with the international agencies and institutions. This paper presents the current scenario of corporate governance in India, the evolving legal framework and identified the major issues and challenges that need to be addressed to implement an effective system of corporate governance in India.

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Authors: LL.M. Darja LONČAR DUŠANOVIĆ

Obligation for telecom operators to retain traffic and location data for combating crime purposes had been controversial ever since the adoption of the Data Retention Directive in 2006 because of its inherent negative impact on the fundamental right to privacy and personal data protection. However, the awaited judgment of the CJEU in April this year, which declared the Directive invalid, did not so far resolve the ambiguity of the issue. Namely, having in mind that half a year later, some countries did not amend their national data retention legislations (yet) to comply with the aforementioned CJEU judgment, telecom operators as addresses of this obligation are in uncertain legal situation which could be called “lose-lose” situation. Also, the emphasis from the question of proportionality between data privacy and public security is shifted to the question of existence of valid legal basis for data processing (retaining data and providing them to authorities) in the new legal environment in which national and EU law are still not in compliance. In this paper the author examines the implications of the CJEU judgment to national EU legislation, telecom operators and data subjects, providing comparative analysis of national data retention legislation status in EU member states. The existence of valid legal basis for data processing is examined within EU law sources, including within proposed EU General Data Protection Regulation and opinions of the relevant data protection bodies (e.g. Article 29 Working Party).

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Authors: Lecturer Hervé Magloire MONEBOULOU MINKADA

Most of time, the suspect is presumed innocent in the beginning of the penal proceeding. But this presumption of innocence is created for saving individual freedoms and reputation. The truth is that the suspect is presumed guilty after his arrest. And the judicial authorities will check if the suspect is innocent or confirmed guilty. This situation can threaten individual freedoms and reputation. That is why we want to size the meaning of presumption of innocence in other to protect it, at first. Secondly, we are going to study the presumption of culpability. What is more, the fact that the suspect is presumed guilty justifies the office of a barrister at any stage of the penal proceeding. In fact, before the arrest of the suspect, he is presumed innocent. After his arrest he is presumed guilty.

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Authors: Lecturer Cătălin-Silviu SĂRARU, PhD

The article analyzes the principles of interpretation for administrative contracts, in French law and in Romanian law. In the article are highlighted derogations from the rules of contract interpretation in common law. Are examined the exceptions to the principle of good faith, the principle of common intention (willingness) of the parties, the principle of good administration, the principle of extensive interpretation of the administrative contract. The article highlights the importance and role of the interpretation in administrative contracts.

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Authors: Lecturer Mihai Cristian APOSTOLACHE, PhD

The article approaches the topic of administrative acts motivation, analyzed from the doctrinal and jurisprudential perspective. If at first, motivation was considered merely a formal condition of the administrative act, as a result of the national and European, doctrinal and jurisprudential evolution, motivation is now regarded as one of the most important conditions of validity for the administrative act. Motivating administrative acts represents also a manifestation of the right to information, sealed by the Romanian Constitution, and a dimension of the right to a good administration, as stipulated in the Charter of Fundamental Rights of the European Union.

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Authors: Student Mircea I. GHERGHINA, Student Nikolett CSÁSZÁR, Student Ioan Alexandru GHERASIM

This paper examines the banking regulatory frameworks that were enforced from the 1980 to date and see if there is a cyclical tendency in the patterns of regulations and deregulations. To analyse this, we look at 10 acts or key events from the US banking industry and compare them against variant macroeconomic indicators. The result shows that lawmakers imposed deregulations upon the banking industry in moments of economic growth and regulatory measures after a period of economic downturn. This has some serious implications for policy making. In the end, we attempt to conclude whether lawmakers should back off and have a hands off approach to banking industry or if they should permanently regulate.

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Authors: PhD Student Iulia BĂDOI

Negotiation is the process we use in order to obtain things that we want and are controlled by others. Any desire we intend to fulfill, any need that we are obliged to meet is a potential bargaining situations. Between groups and individuals, negotiation occurs naturally, as some have one thing that the other wants and is willing to bargain to get it. More or less we are all involved in negotiations: closing a contract, buying a thing, obtaining sponsorships, collective decision making, conflict resolution, agreement on work plans. Within the field of labor relations, negotiation can occur on the occasion of closing / amending employment contracts or in order to regulate employment or work relations. Moreover, used properly, the negotiation can be an effective tool for solving labor disputes, with benefits for both involved parties. This paper aims to present negotiating principles and steps to follow in planning and preparing negotiations and the negotiating techniques that can lead to a successful negotiation based on a well-developed plan.

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Authors: Lecturer Hervé Magloire MONEBOULOU MINKADA

Classically, the root of the contract is the agreement of the contracting parties. That is why, sometime people consider the contract as the agreement of the contracting parties. However, the agreement is not the contract. The both are different. In fact, if for the contracting parties there is a contract after an agreement, for the law there is a contract when the agreement of the contracting parties respects the frame previewed by the law. That is why the contract must be an institution. This view of the contract enables to have another meaning and to gather the keys ideas of the different opinions on the meaning of the contract. Thanks to the contract as an institution, we can no longer be afraid of the crisis of the contract.