Juridical Tribune - Tribuna Juridica

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Authors: Lawyer Beatrice Mihaela MORARU; Assistant professor Diab HASANIN

In this paper we will present the notion of Center of Main Interests (COMI) of a debtor in the insolvency proceedings at the European Union level in the light of EU Regulation No. 1346 / 29.05.2000 and the EU Regulation No. 848 / 20.05.2015 with constant reference to the European jurisprudence. The concept of center of main interests of a debtor has a particular importance in the cross border bankruptcy cases as its location determines the court which is competent to open the insolvency proceedings. Although at the European level adopting the EU Regulation No. 1346 / 29.05.2000 was considered a legislative progress in bankruptcy proceedings, in the end it had relatively few applications as it was unable to cover large factual aspects. The mentioned regulation was offering a rigid and abstract definition and interpretation of the COMI concept which resulted in important legal application divergences that lead in the end to a legislative reform. This legislative reform was concluded with the adoption of EU Regulation No. 848 / 20.5.2015.

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Authors: PhD. student Vasilisa MUNTEAN

In the research, a doctrinal and legal analysis of the concept of legal error is carried out. The author provides a self-defined definition of the concept addressed and highlights the main causes and conditions for the occurrence of judicial errors. At present, in the specialized legal doctrine of the Republic of Moldova, the problem of defining the judicial error has been little approached. In this respect, this scientific article is a scientific approach aimed at elucidating the theoretical and normative deficiencies and errors that occur in the area of reparation of the prejudice caused by judicial errors. In order to achieve our goal, we aim to create a core of ideas and referral mechanisms that ensure a certain interpretative and decisional homogeneity in the doctrinal and legal characterization of the phrase "judicial error".

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Authors: PhD. Cristina Elena POPA (TACHE)

The international law of foreign investments is in a process of permanent emerging, whose structure appears as a complex and unitary multitude of interactions between the branches of law and its evolution is inspired by sociology, philosophy, politics and economy. These principles are guiding precepts and guidance aimed at drawing up and application of legal norms on international investments and can be formulated in the text of the Treaties and other regulations in this field. These are the support of the stability of the international law of investments, correcting the discrepancies, excesses and anomalies that are naturally identified at a certain moment in the interpretation and application of this new field of law. The existence of the general principles has a prominent role in the transition periods of law and in the hierarchy, the harmonization and the compatibility of different legal systems.

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Authors: Assistant professor Tomáš MALATINEC

Concept of green public procurement is promoted by the European Union and it is a voluntary tool applicable in public administration that can bring environmental, social and economic benefits both at European and national level. The paper analyses EU and Slovak legislative framework of the green public procurement and Europeanisation of the Slovak practice. Normative analyses was used as a method to assess the current EU and Slovak legal norms regulating the concept of green public procurement and mutual interconnections have been identified between European and Slovak legal institutes. The findings show that the Slovak republic already has initial experience with green public procurement implementation and the impact of the EU had been proven. Directives dominate as legal acts in the EU legal framework of green public procurement. The EU legislative framework is based especially on a possibility to implement the concept of green public procurement. However, obligatory norms are gradually being promoted. This fact can predict progressive change de lege ferenda and the need for flexible adaptation of public administration systems in the Member states. Evidence from the Slovak practice shows direct transposition of provisions and further development of green public procurement with the focus on the Slovak priorities.

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Authors: Ph.D. Delia MAGHERESCU

The procedure of preliminary decision has been for a long time agreed unanimously both by doctrine and jurisprudence and considered as a keynote in developing notional law systems of the European Communities. In the national frame, it is similarly with submitting unconstitutional exception, regulated in several national jurisdictions of the EU Member States. The current paper aims at providing some argues based on a jurisprudence frame of the procedure of preliminary decision made by the Court of Justice of the European Union, as being directory for the national EU Member States’ courts of justice. It also focuses on the judicial issues whose solution is needed in order for the national justice to solve the cases they were invested with.

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Authors: Professor Anna BANDLEROVÁ; PhD. Jarmila LAZÍKOVÁ; PhD. Ľubica RUMANOVSKÁ; PhD. student Zuzana LAZÍKOVÁ

The land fragmentation is one of the serious problems in Slovakia which is given by the historical development of the land law. In the past, landowners tried to solve this problem by creation of various forms of land associations oriented to the common cultivation of agricultural land and forest land. Nowadays, the Slovak lawmaker decided to regulate the institute of land associations by the law. Land associations in Slovakia are legal entities conducting agricultural business on agricultural land, forest land or in water areas; moreover, they can provide also other business activities according to particular legal regulations. Land associations conduct business on real estate property or, more commonly, properties, which are usually owned by many co-owners, because the individual cultivation of small part of land plots would not be effective. However, the law is a subject of legal amendments more often than necessary in order to ensure the legal certainty. This paper introduces this recondite legal entity, its activities, its internal government and the ownership rights of its members. A pre-emption right that has a special legal regulation different from the general legal regulations of the pre-emption rights in the Civil Code is one of the special issues..

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Authors: Lecturer Comfort Fuah KWANGA

Everyone in the society is faced with the possibility of one or more hazards that are part of life will sooner or later befall him and may occasion some loss. This misfortune is uncertain as to the time and period when it will occur and this amongst others include: fire outbreak, accident, and even death. This necessitates the need for people to go for insurance policies which suit their various needs in order to permit compensation in case of loss. Most consumers of insurance products are “short changed” in the process because very few take the trouble to read through their insurance policies in order to ascertain and understand the terms and conditions. The result is that most often when a claim arises and it is discovered that the loss is not covered by the terms of the insurance contract, there is the tendency of blaming the insurance companies. This paper posits that: there are of course some “bad eggs” in the industry who manipulate consumers. However, the paper holds that this unpleasant quagmire is often due to lack of understanding of the terms of insurance contracts in general and consumer apathy in particular. The essence of this study is to re-iterate the need to communicate the rules of the insurance game, thereby minimizing some of the misunderstanding and problems faced by consumers.

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Authors: Associate professor Howard CHITIMIRA

The doctrine of estoppel precludes a person (asserter) from asserting something different or contrary to what is implied by a previous action, conduct or statement of that person or by a previous pertinent judicial determination. While there are various types of estoppel, this article is primarily focused on the application of issue estoppel in relation to certain aspects of the directors’ fiduciary duties in South Africa (s 76 of the Companies Act 71 of 2008 (Companies Act 2008)), in light of the judgment in Royal Sechaba v Coote (366/2013) [2014] ZASCA 85 (30 May 2014) (Royal Sechaba case). Issue estoppel could be defined to include instances where a person is precluded from re-litigating or raising a particular issue in a cause of action that was previously decided by a final judgment of a competent court between the same parties in future cases that have a different cause of action involving such parties. Issue estoppel is closely related to res judicata. For instance, both issue estoppel and res judicata are generally aimed at preventing the re-litigation of the same issues and same cause of actions that were previously decided by a final judgment in the relevant courts between same parties. Nonetheless, it is widely acknowledged that the application these two concepts is quite different in practice. For instance, some jurisdictions such as the United Kingdom (UK) and South Africa employs English law and Roman-Dutch law (common law) principles respectively, to distinguish between issue estoppel and res judicata. Likewise, similar common law principles are employed in the United States of America (USA), Canada and Australia to distinguish res judicata and issue estoppel in various ways. For example, issue estoppel is sometimes referred to as collateral estoppel, issue preclusion, claim preclusion or cause of action estoppel in USA, Canada and Australia. Despite this, it should be noted that a detailed discussion of the different requirements, merits and demerits of issue estoppel and res judicata in various jurisdictions is beyond the scope of this article. Put differently, this article provides a brief discussion of the application of issue estoppel to commercial agreements (certain aspects of the directors’ fiduciary duties) in South Africa in accordance with the Royal Sechaba case. This is done to investigate whether the requirements of issue estoppel were correctly applied and enforced in Royal Sechaba case.

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Authors: Associate professor Cătălin-Silviu SĂRARU; Ph.D. Maria GRZYMISŁAWSKA-CYBULSKA; Ph.D. Kajetan GÓRNY

The subject matter of this article is to compare the regulations of Romanian, Polish and German guarantees of the right to an impartial court within the context of a judge disqualification in a court-administrative proceeding. The comparison of Romanian, Polish and German regulations pertaining to judge disqualification in court-administrative procedure leads to a conclusion that there are some significant distinctions among those regulations. It is worth noticing that the Polish court-administrative procedure is the only one, out of the three analyses systems, which could be featured as fully autonomous. At the same time both the Romanian as well as the German regulations depend on a reference to their civil procedures. On a side note, a reference to the provisions of the civil procedure also existed in Poland, until 2004, when the current Law on Proceedings Before Administrative Courts entered into force. All three legal systems underline the importance of the regulations on the judge’s professional status within the context of providing conditions for impartial adjudication.